Can a school district punish a student for what they post on social media?

Something to look forwarsd to--free speech in public schools:

 

https://twitter.com/FedSoc/status/1443241625514348544

Assignment for Monday October 4

We have two leftovers from last class to attend before moving on:

1. I will reserve the first 15 minutes of class for Q & A on the Ministerial Exception (the church autonomy doctrine)

2. Last time, I accidentally skipped over Cuomo. So let's spend 15 minutes discussing Cuomo and Covid restrictions. 

Then we will move on to the next assignment:

 7. Trinity Lutheran (Link); Espinoza (notice Justice Thomas's concurring opinion in particular) (link); The Next School Choice Case

 Video 14

https://use.vg/oE0YZ4

Fulton on Strict Scrutiny

 Here is what the Fulton Court says about the compelling interest test:

CSS has demonstrated that the City’s actions are subject to “the most rigorous of scrutiny” under those precedents. Because the City’s actions are therefore examined under the strictest scrutiny regardless of Smith, we have no occasion to reconsider that decision here.

A government policy can survive strict scrutiny only if it advances “interests of the highest order” and is narrowly tailored to achieve those interests. Put another way, so long as the government can achieve its interests in a manner that does not burden religion, it must do so.

The City asserts that its non-discrimination policies serve three compelling interests: maximizing the number of foster parents, protecting the City from liability, and ensuring equal treatment of prospective foster parents and foster children. The City states these objectives at a high level of generality, but the First Amendment demands a more precise analysis. Rather than rely on “broadly formulated interests,” courts must “scrutinize[] the asserted harm of granting specific exemptions to particular religious claimants.” The question, then, is not whether the City has a compelling interest in enforcing its non-discrimination policies generally, but whether it has such an interest in denying an exception to CSS.

Once properly narrowed, the City’s asserted interests are insufficient. Maximizing the number of foster families and minimizing liability are important goals, but the City fails to show that granting CSS an exception will put those goals at risk. If anything, including CSS in the program seems likely to increase, not reduce, the number of available foster parents. As for liability, the City offers only speculation that it might be sued over CSS’s certification practices.

Such speculation is insufficient to satisfy strict scrutiny, particularly because the authority to certify foster families is delegated to agencies by the State, not the City. That leaves the interest of the City in the equal treatment of prospective foster parents and foster children. We do not doubt that this interest is a weighty one, for “[o]ur society has come to the recognition that gay persons and gay couples cannot be treated as social outcasts or as inferior in dignity and worth.” On the facts of this case, however, this interest cannot justify denying CSS an exception for its religious exercise. The creation of a system of exceptions under the contract undermines the City’s contention that its nondiscrimination policies can brook no departures. The City offers no compelling reason why it has a particular interest in denying an exception to CSS while making them available to others.

Masterpiece Cakeshop: Compelled Speech Issue

 The Court did not decide the Free Speech issue in this case. But Justice Kennedy's majority opinion did say this much:

The freedoms asserted here are both the freedom of speech and the free exercise of religion. The free speech aspect of this case is difficult, for few persons who have seen a beautiful wedding cake might have thought of its creation as an exercise of protected speech. This is an instructive example, however, of the proposition that the application of constitutional freedoms in new contexts can deepen our understanding of their meaning.

One of the difficulties in this case is that the parties disagree as to the extent of the baker’s refusal to provide service. If a baker refused to design a special cake with words or images celebrating the marriage—for instance, a cake showing words with religious meaning—that might be different from a refusal to sell any cake at all. In defining whether a baker’s creation can be protected, these details might make a difference.

 

What are your thoughts? Do custom wedding cakes express any ideas? Or are they no different from a biscuit or a croissant?

Masterpiece Cakeshop & Fulton and Individualized Exemption Process

 Here is an excerpt from my article on Masterpice at p. 16-17:

Second, and most important, the Commission applied a double standard when investigating discrimination complaints against bakers who refused to create cakes that expressed messages of which they disapproved. Although the Colorado public accommodations law prohibits discrimination on the basis of religious “creed” as well as “sexual orientation,” the Commission applied a more lenient standard to claims of religious discrimination than to claims of sexual orientation discrimination. On at least three different occasions, cake artists refused to bake cakes with religious “images that conveyed disapproval of same-sex marriage.” Under the public accommodations law, the state of Colorado conceded that “[b]usinesses are entitled to reject orders for any number of reasons, including because they deem a particular product requested by a customer to be ‘offensive.’” The Commission applied this “offensive product” exception subjectively and on an ad hoc basis, apparently granting an exception when it agreed with the cake vendor and refusing an exception when it disagreed with the vendor.Thus, the Commission repeatedly allowed cake artists to refuse to create “offensive” cakes, even though the customer was in a protected class—religious “creed”—under the public accommodations law.

 

 

 Now consider this passage from Fulton:

 

A law is not generally applicable if it “invite[s]” the government to consider the particular reasons for a person’s conduct by providing “‘a mechanism for individualized exemptions.’” For example, in Sherbert v. Verner (1963), a Seventh-day Adventist was fired because she would not work on Saturdays. Unable to find a job that would allow her to keep the Sabbath as her faith required, she applied for unemployment benefits. The State denied her application under a law prohibiting eligibility to claimants who had “failed, without good cause . . . to accept available suitable work. We held that the denial infringed her free exercise rights and could be justified only by a compelling interest.

Smith later explained that the unemployment benefits law in Sherbert was not generally applicable because the “good cause” standard permitted the government to grant exemptions based on the circumstances underlying each application. Smith went on to hold that “where the State has in place a system of individual exemptions, it may not refuse to extend that system to cases of ‘religious hardship’ without compelling reason.

 

Now this from Fulton: 

The City initially argued that CSS’s practice violated section 3.21 of its standard foster care contract. We conclude, however, that this provision is not generally applicable as required by Smith. The current version of section 3.21 specifies in pertinent part: “Rejection of Referral. Provider shall not reject a child or family including, but not limited to, . . . prospective foster or adoptive parents, for Services based upon . . . their . . . sexual orientation . . . unless an exception is granted by the Commissioner or the Commissioner’s designee, in his/her sole discretion.”

This provision requires an agency to provide “Services,” defined as “the work to be performed under this Contract,” to prospective foster parents regardless of their sexual orientation. Like the good cause provision in Sherbert, section 3.21 incorporates a system of individual exemptions, made available in this case at the “sole discretion” of the Commissioner. The City has made clear that the Commissioner “has no intention of granting an exception” to CSS. But the City “may not refuse to extend that [exemption] system to cases of ‘religious hardship’ without compelling reason” . . . .

 

Now this (edited from linked version) from Fulton:

 Finally, the City and intervenor-respondents contend that the availability of exceptions under section 3.21 is irrelevant because the Commissioner has never granted one.That misapprehends the issue. The creation of a formal mechanism for granting exceptions renders a policy not generally applicable, regardless whether any exceptions have been given, because it “invite[s]” the government to decide which reasons for not complying with the policy are worthy of solicitude, Smith, 494 U. S., at 884—here, at the Commissioner’s “sole discretion.”

So Sherbert lives on greatly, as an individualized exemption decision triggering real strict scrutiny.

 

Fulton v. City of Philadelphia: Big Win For Religious Liberty

 Luke Goodrich reports:

#BREAKING: The Supreme Court just ruled UNANIMOUSLY that Philadelphia can’t shut down a Catholic foster-care ministry because of its religious beliefs about marriage. Some will try to say the ruling is “narrow.” Wrong. Five reasons this is HUGE:

 1. It is UNANIMOUS. This sends a powerful message that religious Americans are free to serve. They don’t have to change their basic beliefs about marriage and family in order to join hands across faith lines and serve the neediest in society.

 2. It shows that the infamous Smith decision--which narrowed the Free Exercise Clause--is not long for this world. There are at least 5 votes, likely 6, to overrule it. It’s only a matter of time before the Court restores even stronger protections for religious freedom.

 3. It adopts a rigorous test even under Smith. It says if a law lets the government make any case-by-case “exceptions,” even theoretically--which many laws do--the law is subject to strict scrutiny. This means gov't will have far less flexibility to restrict religious practices.

 4. It rejects the idea that constitutional protections go out the window when the government is entering “contracts” or managing “internal affairs.” This means the constitution applies rigorously across ALL government activities.

 5. It adopts a robust (correct) version of strict scrutiny—expressly rejecting the idea that the government can cite a general interest in “equality” or “dignity” to trump religious freedom.

 

And this from Roger Severino:

 

The most important line in Fulton: “The question [] is not whether the City has a compelling interest in enforcing its non-discrimination policies generally, but whether it has such an interest in denying an exception to CSS.” To which the court answered with one voice, no. 1/4

 This means generalized interests in sexual orientation and gender identity discrimination laws cannot automatically force individual religious orgs and people to act contrary to their beliefs. This is huge. 2/4

 The constitution requires space for people of good will to live according to their views of marriage, family, and human flourishing in their daily lives even today, when it has fallen out of favor with some woke governments. 3/4

 The court didn't condemn these religious beliefs with facile race analogies because implicitly they acknowledge there's something so different, real, and unchanging in the nature of embodied human sexuality that even the liberals on the court won't call such people bigots. 4/4

 

And this from the Court's opinion:

"As Philadelphia acknowledges, CSS has “long been a point of light in the City’s foster-care system.” Brief for City Respondents 1. CSS seeks only an accommodation that will allow it to continue serving the children of Philadelphia in a manner consistent with its religious beliefs; it does not seek to impose those beliefs on anyone else. The refusal of Philadelphia to contract with CSS for the provision of foster care services unless it agrees to certify same-sex couples as foster parents cannot survive."

Assignment For Tuesday September 28

6. Hosanna-Tabor decision (link); Our Lady of Guadalupe (link)
 

Video13

https://use.vg/kepE0g

 

 

Is Cake Art?-- Meet The "Pistol Pete" Wedding Cake

 

This is a wedding cake. Here is the story from cake artists brief in Masterpiece:

"Another imaginative wedding cake (or in this case, a groom’s cake), had its origins in as unlikely a place as the pig barn at the Oklahoma State Fair. That was where the future bride and groom met. They were agriculture students at Oklahoma State University, “showing” pigs for the school. The details of how they met became a central part of their story as a couple. Accordingly, they asked Jennifer Jones of Icing On The Top to construct their story through cake so that they could exhibit it at their wedding reception.
The cake depicts Oklahoma State mascot “Pistol Pete” riding atop a pig. When finished, the cake was three feet high, weighing 125 pounds. The final result is both impressive and hilarious.
But it was also a monumental undertaking." 

This wedding cake tells this couple's  love story. It is art. It is speech. To compel a cake artist to create such a cake is to compel speech.

Relative Harms

                                       Jack Phillips Painting a Masterpiece Cake

 Some commentators argue that the First Amendment should not be construed to protect free speech or religious liberty that causes harm to third parties. Thus, in Masterpiece Cakeshop, Jack Phillips should not be protected by the First Amendment because his refusal to create wedding cakes celebrating same-sex marriage caused "harm" to the gay couple whose request for a wedding cake was refused. What was the nature of the harm? Moreover, some commentators assert that the harm suffered is even more severe when the objection to providing the service is based upon a religious belief that the customer's conduct is sinful.

What are your thoughts about this? 

Is this a case in which there is harm on only one side?

If religious liberty must be suppressed when it causes harm to gay couples, should public accommodations laws be suppressed when they cause harm to wedding vendors? What harm did Jack Phillips suffer when he was ordered to create custom wedding cakes celebrating same-sex marriage? And who inflicted that harm on Jack?

As Professor Stephanie H. Barkley explains, “someone will always experience a cost or harm when government acts to protect, or not protect, any constitutional right.” Therefore, she argues, “we must broaden our lens to observe harms on both sides of the scale.”

If we look at harms on both sides of the scale, which party suffers the greater harm?

Let's talk about this in class.

Religious Liberty and Same-sex Marriage

 In his majority opinion in Obergefell v. Hodges, the decision in which the Court created a constitutional right to same sex marriage, Justice Kennedy reassured those who believe in traditional marriage that their beliefs would continue to be respected and protected. “Many who deem same-sex marriage to be wrong,” said Justice Kennedy, “reach that conclusion based on decent and honorable religious or philosophical premises, and neither they nor their beliefs are disparaged here.” In even further reassuring dictum, Justice Kennedy continued: “The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered.”

Keep this statement of tolerance in  mind when reading cases such as Masterpiece and Fulton.  

How would a principle of mutual tolerance for competing views about the nature of marriage decide cases such as these?