"Court Finds Church-State Problems With University Training Manual"

From the Religion Clause blog:

In Sklar v. Clough, (ND GA, April 29, 2008), a Georgia federal district court found
substantial problems with material included in a training manual used in Georgia
Institute of Technology's "Safe Space" program. Safe Space is designed to create
a supportive environment on campus for gay, lesbian, bisexual and transgender
students. In an 84-page opinion, the court focused on material dealing with the
views of various religious groups regarding homosexuality. It held that
inclusion of this material violates the Establishment Clause by favoring some
religious beliefs over others.

In the opinion the court also dismissed claims regarding use of student
activity fees because there had not been adequate proof of the responsibility of
the specific named defendants. However the court suggested that a suit against
proper defendants could well be successful. It said the school's policy against
funding religious activities with student fees is administered in a manner that
"is whimsical and would appear to exceed even an arbitrary and capricious
standard." Alliance Defense Fund yesterday issued a release reporting on the court's decision. Also the Atlanta Journal Constitution and Inside Higher Education both report on it. (See prior related posting.)

Expelled: The Movie

link

Syllabus

Just a note--I will be making some changes to the Syllabus later this week to get ready for the Summer Session version of this course.

You may want to make a photcopy of the Spring 2008 Syllabus to avoid any confusion with the changes I will be making for Summer 2008.

7th Circuit "Be Happy Not Gay" T-shirt Decision

From How Appealing:

Late yesterday, a three-judge panel of the U.S. Court of Appeals for the Seventh Circuit issued its decision (in typescript format) in the case. By a vote of 3-0, the panel enters a preliminary injunction allowing Nuxoll to wear the T-shirt. The majority, in an opinion by Circuit Judge Richard A. Posner in which Circuit Judge Michael S. Kanne has joined, views the issue of whether to grant a preliminary injunction as presenting a very close call. Circuit Judge Ilana Diamond Rovner, in an opinion concurring in the judgment, writes "I view this as a simple case." Judge Rovner's must-read opinion stands as a ringing endorsement of the First Amendment rights of young adults in a public school setting.

No Religious Vanity Plates Please, We're From Vermont

From the Religion Clause blog:

A Vermont federal Magistrate Judge has concluded that a challenge to the state Department of Motor Vehicles policy on vanity licence plates should be rejected. The policy prohibits the issuance of plates displaying religious references. Today's Rutland (VT) Herald says that the magistrate's report concluded that "The DMV has the right to prohibit religious messages on license plates provided it does not discriminate based on the particular message or viewpoint." Shawn Byrne, who applied for plates with the number "JN36TN" (referring to the biblical verse John 3:16), already lost his attempt to obtain a preliminary injunction when he first filed the case in 2005. (See prior posting.) Attorneys have until Aug. 27 to file objections to the recent Magistrate's report. Lawyer Jeremy Tedesco said Byrne will continue to press his claim that the state's policy amounts to unconstitutional discrimination against religious viewpoints.

If I am reading this policy right, under it a driver could obtain a "JFK RULES" plate but not a "JESUS RULES" plate. Is the magistrate's ruling that the policy does not discriminate on the basis of the message or viewpoint correct? Certainly, all religious messages and viewpoints are forbidden, but competeing secular messages and viewpoints are permitted. No?

I am not very good at text messaging, but I bet many of you could come up with dozens of examples of similar 8 or 9 digit secular and religious messages that the policy would apply to (forbidding the one and permitting the other). I will start this off: "PRAY" verboten, but "THINK" permitted; "GOD CR8S" verboten, but "DARWIN" or "EVOLUTN" permitted.

I am constantly surprised by the creative energy some governments burn finding ways to suppress the religious expression of their citizens.

Speech By Firefighters and Police Officers: The New York Racist Float Case

Prof Sherry Colb has this article at Findlaw:

"On June 24, federal Judge John Sprizzo of the Southern District of New York issued an extremely controversial opinion in the case of Locurto v. Giuliani. The judge ruled in favor of three men - two firefighters and a police officer, all employed by the City of New York - who rode on a racially offensive float in the Broad Channel, Queens Labor Day Parade. The three men were off duty at the time.

After the incident came to light, then-Mayor Rudolph Giuliani announced that "any police officer, firefighter, or other city employee" involved in the Labor Day Parade would be terminated.

Subsequently, the three men were fired. In response, they sued the City and various City officials, claiming to be victims of retaliation for their exercise of free speech.

After a trial, Judge Sprizzo, sitting without a jury, concluded that the City had violated the First Amendment by firing the plaintiffs for the content of their speech. The result may be that three racists rejoin the ranks of New York's finest and New York's bravest.

But it doesn't have to be that way. The three men's behavior was more than offensive. It also may have evidenced an unfitness to serve as firefighters and police officers, duty-bound to serve African-American citizens. Thus, while the plaintiffs may deserve compensation for the infringement of their rights, they should not be reinstated.

The Float and the Three Men's Conduct

The float in question was entitled "Black to the Future: Broad Channel 2098." Meant to win the prize for funniest float in the parade, it exhibited a strong antipathy for racial integration - particularly, the integration of Broad Channel, Queens.

The float consisted of a flatbed truck on top of which the plaintiffs sat with a large bucket of fried chicken and watermelons. The men wore blackface and Afro wigs made of mops, and they mockingly engaged in various civil rights chants, including "No justice, no peace."

Bringing the display to a new low, one of the plaintiffs announced, "Look what they did to our brother in Texas, we would not allow them here...." and proceeded to hang by his hands from the back of the truck. In carrying out this stunt, he was manifestly parodying the dragging murder of James Byrd, Jr. - a black man whom three white men killed in Jasper, Texas. To the cheers of spectators, the firefighter repeated his display."

Here is more of Prof. Colb's analysis:

"In his opinion, Judge Sprizzo reiterated a number of times that the government may sometimes terminate employees whose continued employment will cause disruption to the municipality in its efforts to carry out functions for which the employees were hired.

Thus, the City could have legitimately fired the plaintiffs because of the community's likely reaction to the racist float - interference with the police or fire departments' missions, morale, or community recruitment efforts.

If disruption is reasonably predicted, Judge Sprizzo explained, then a court will perform a balancing test in which it determines whether the potential disruption is sufficient to outweigh the employee's interest in expressing herself on a matter of public concern.

As the judge acknowledged, the government has greater power, for First Amendment purposes, when it acts as an employer than when it acts as a sovereign (or regulator of behavior).

If you work for the Mayor and call him a fascist, for example, he may be able to fire you, even though private citizens can call him a fascist without fear of reprisal.

In spite of this distinction between government-as-employer and government-as-sovereign, however, we retain robust free speech rights against government censorship, even when that censorship takes the form of employment sanctions.

Thus, if we speak on a matter of public concern, and if our job penalty is motivated by the content of our speech, rather than by worries about disruption, then the government violates our First Amendment liberties by penalizing us.

Judge Sprizzo ultimately concluded that the City, in firing the plaintiffs, did not act out of a concern about public disruption resulting from the float but rather, in an effort to silence a racist message. He therefore found that the firings violated the First Amendment.

The judge cited much evidence to support his factual conclusion that it was the content rather than the functional consequences of the plaintiffs' speech that motivated their discharge. This included the fact that the Mayor's office supported reinstating four police officers who had killed a West African immigrant named Amadou Diallo, despite the considerable public disruption caused by that killing.

Judge Sprizzo thus decided that it was the message of the racist float, and not the potential impact on public service, that had motivated the City."

Gay Rights vs Religious Freedom

Here is a press release, about a current case, released today by the Alliance Defense Fund:

"ADF to appeal N.M. commission’s rulingagainst Christian photographer
Photo artist forced to pay over $6,600 in attorneys’ feesfor declining to photograph same-sex ceremony

ROSWELL, N.M. — Attorneys with the Alliance Defense Fund say they will appeal a ruling by the New Mexico Civil Rights Commission Wednesday because of its “stunning disregard” for the First Amendment. The commission found an Albuquerque photography company, run by a Christian husband and wife, guilty of “sexual orientation” discrimination under state antidiscrimination laws for declining to photograph a same-sex “commitment ceremony.”
“Christians in the marketplace should not be penalized for abiding by their beliefs anymore than anyone else should,” said ADF Senior Counsel Jordan Lorence. “The Constitution prohibits the state from forcing unwilling people to promote a message they disagree with and thereby violate their conscience. The commission’s decision shows stunning disregard for our client’s First Amendment rights, and we will appeal this ruling in state court.”
A same-sex couple asked Elaine Huguenin, co-owner with her husband, Jon Huguenin, of Elane Photography in Albuquerque, to photograph a “commitment ceremony” that the two women wanted to hold in Taos. Neither marriage nor civil unions are legal between members of the same sex in New Mexico.
Elaine Huguenin declined because her and her husband’s Christian beliefs are in conflict with the message communicated by the ceremony. The same-sex couple filed a complaint with the New Mexico Human Rights Commission, accusing Elane Photography of discrimination based on sexual orientation. The commission held a one-day trial in January (www.telladf.org/news/story.aspx?cid=4369).
Wednesday the commission issued an order finding that Elane Photography engaged in “sexual orientation” discrimination prohibited under state law and ordered it to pay $6,637.94 in attorneys’ fees to the two women who filed the complaint.
“The government cannot make people choose between their faith and their livelihood,” said Lorence. “Could the government force a vegetarian videographer to create a commercial for the new butcher shop in town? American business owners do not surrender their constitutional rights at the marketplace gate.”
A copy of the commission’s order in Willock v. Elane Photography is available at www.telladf.org/UserDocs/ElaneRuling.pdf.
ADF is a legal alliance defending the right to hear and speak the Truth through strategy, training, funding, and litigation."

New Assignment

Since we have 6 more classes, I have added one new assignment (see the syllabus).

These cases, which deal with "fighting words," "hate speech" and symbolic speech, are very interesting.

Cheers, Rick Duncan

UPDATE: This Week's Assignments

I just noticed that the links for Morse and Poway are to full text opinions.

I found an edited version of Morse (link) which we will discuss in class instead of the full text version. I substituted the new link for the old link on the syllabus.

For Poway, just skim through the facts and analysis. I want to use it more for a hypo than for a principal case.

Sorry for the delay in getting this out to you. It is not easy to find edited versions of cases on line.