Supreme Court

Two professors and a university president at two Utah universities are facing intense scrutiny from colleagues and students after signing a legal brief provided to the Supreme Court that defends traditional marriage.

Utah State University professors Richard Sherlock and Kay Bradford, along with Utah Valley University president Matthew Holland, were three of 100 scholars nationwide that signed an amicus curiae, or friend of the court brief, in support of traditional marriage.

Opponents of the brief allege the three, by signing the document, are perpetuating discrimination in the name of their respective universities.

The “100 scholars of marriage” brief is one of more than 140 briefs provided to the Supreme Court as it decides whether state bans on gay marriage are constitutionally legal.

Arguing in favor of gay marriage bans, the “100 scholars of marriage” brief states that “forcing a state to redefine marriage in genderless terms will seriously disserve the vast majority of the state’s children.”

The brief further argues redefining marriage will bring an increase in poverty, the number of children with emotional problems, and teenage pregnancies and abortions, among other things.

“[A] social institution is like an ecosystem—substantial changes to it can have consequences that are unintended and slow-moving, but still devastating,” the brief concludes.

Because of the brief’s staunch defense of traditional marriage, some professors and students at Utah State and Utah Valley have gone on the offense toward the two professors and president. A contingent of students and employees at each university penned letters that express their disapproval.

In a letter sent to the Herald Journal, 250 students and professors at Utah State wrote the signatures of Sherlock and Bradford “send a clear message of intolerance to those LGBTQ students, faculty, and allies” at the university.

“Ultimately, they used their university title to perpetuate discrimination — that’s not OK, and that’s why we wrote this letter,” said Senior Bret Nielsen, who drafted the letter.

In response, Sherlock said his opposition to gay marriage is not equivalent to discrimination, especially when related to gay students.

“We all have views,” Sherlock told the Herald Journal. “Our task as teachers is not to keep those views hidden but insure that we are being fair to students who disagree.

Bradford has not commented on the controversy.

At Utah Valley, more than 100 employees sent a letter to Salt Lake Tribune alleging Holland was out of line by signing the brief. The letter argues that all Utah Valley employees, including Holland, “have the right to speak publicly as private citizens on controversial issues.”

Yet, the letter seems to immediately revoke that right from Holland.

“However, as the public face of UVU to the larger community, Holland has a special responsibility to avoid public pronouncements that would harm his ability to carry out his duties as president of a state university officially committed to ‘diversity and inclusion,’ ” the letter continues.

A Utah Valley official refuted the letter’s claim, telling The College Fix that Holland signed the brief “as an individual, and not in any capacity on behalf of the university.”

The official emphasized a footnote from the brief’s appendix that stated the listing of the each signee’s university was for identification purposes only.

“Opinions expressed are those of the individual amici, and not necessarily of their affiliated institutions,” the footnote reads.

Furthermore, the university told The Fix Holland has “always championed” diversity and inclusion on campus “creating an environment of genuine respect and civility for all people.”

The Supreme Court heard oral arguments for Obergefell v. Hodges, the case the brief was provided for, on April 28. It is expected to announce its ruling sometime in late June.

College Fix reporter Nathan Rubbelke is a student at Saint Louis University.

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Something that didn’t draw much attention in yesterday’s Supreme Court oral argument over whether the Constitution mandates the legal recognition of same-sex marriage: how it may affect religious colleges.

Ed Whelan at National Review has the pertinent section of the transcript, where Justice Samuel Alito is grilling Solicitor General Donald Verrilli:

Justice Alito: Well, in the Bob Jones [University] case, the Court held that a college was not entitled to tax-exempt status if it opposed  interracial marriage or interracial dating. So would the same apply to a university or a college if it opposed same-sex marriage?

General Verrilli: You know, I—I don’t think I can answer that question without knowing more specifics, but it’s certainly going to be an issue. I—I don’t deny that. I don’t deny that, Justice Alito. It is—it is going to be an issue.

Whelan has good advice for journalists covering the issue:

I hope that reporters will ask President Obama if he is going to direct or allow his Administration to deprive religious schools and other nonprofits of their tax-exempt status for holding the same view of marriage that he professed to hold when he was first elected president.

Chief Justice John Roberts also got in on the act, according to NR‘s Joel Gehrke:

“Would a religious school that has married housing be required to afford such housing to same­-sex couples?” Roberts had asked. Verrilli tried to defer to the states on that point, but Roberts pressed him about the significance of the court’s ruling as it might pertain to federal law.

Read the posts.

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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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