Justice Thomas' Dissent in Mahanoy

 Justice Thomas cites "150 years of history supporting" school censorship because "schools act in loco parentis when students speak on campus" (and, "because speech travels, schools sometimes may be able to treat speech as on campus though it originates off campus").

He accuses the Court of taking "a common-law approach to today's decision." 

What are your thoughts? Do you agree with Justice Thomas? 

History is one means of discovering original meaning, but when history is used to limit the plain meaning of the written text ("no law...abridging the freedom of speech"), should the Court follow the text or history? And, of course, history and tradition provide little insight to an off campus Snapchat or X post sent via the student's smartphone to the student's "friends" and followers on social media.

But always keep your eye on Justice Thomas--he is the most interesting Justice on this Court and his opinions are well-reasoned and persuasively written.

PJI Wins Covid-Vax Religious Accommodations Lawsuit

 Legal Earthquake: SF jury awards millions to workers denied religious accommodations

Here is the press release:

 

San Fransisco, CA. –  A federal jury on Wednesday delivered a stunning blow to Bay Area officials who denied every religious accommodation requested by workers to its COVID-19 vaccine mandate.

The 8-person jury deliberated for two days before unanimously awarding 6 former employees of San Francisco Bay Area Rapid Transit District (BART) more than $1 million each, for a total of about $7.8 million. The employees have been represented by Pacific Justice Institute since 2022.

Last Friday, the jury first determined that BART failed to prove an undue hardship in denying any accommodations to the employees. Yesterday, the jury further concluded that all of the employees had met their burden of showing a genuine conflict between their faith and the vaccine requirement, which was implemented in late 2021. The jury then accepted the numbers calculated by the plaintiffs’ economic expert for lost wages and added $1 million to each of those figures.

Brad Dacus, president of PJI, commented, “These verdicts are seismic—a 7.8 San Francisco legal earthquake. This amazing outcome represents so much hard work by our team, perseverance by these clients, and fairness from our judicial system.”

Kevin Snider, PJI’s Chief Counsel who served as lead trial counsel, commented, “The rail employees chose to lose their livelihood rather than deny their faith. That in itself shows the sincerity and depth of their convictions. After nearly three years of struggle, these essential workers feel they were heard and understood by the jury and are overjoyed and relieved by the verdict.”

During the trial, jurors heard compelling testimony from dedicated employees. One of the plaintiffs had worked for more than 30 years for BART, with a stretch of 10 years perfect attendance, before being unceremoniously dismissed. Another had been out on workers comp for months, with no scheduled return date, when she was fired. BART had also argued that several of the employees’ conflicts with taking the vaccine were more secular than religious. The jury disagreed.

PJI’s trial attorneys in this case consisted of Kevin T. Snider, Matthew B. McReynolds, and Milton E. Matchak. PJI was joined at trial by co-counsel Jessica R. Barsotti. Nationwide, PJI continues to represent hundreds of dedicated employees who lost their jobs after they sought and were denied religious accommodations to the COVID-19 vaccines. This week’s verdicts are expected to impact many of those pending cases.

First Amendment Fall 2024: Assignments For October 28 & 29

  -- Casebook p. 1520-1541; Mahanoy School District

-- Casebook p. 1541-1546; Re-read Rosenberger (link); Casebook p. 1585- 1592

Liam Morrison Censored at School

 From ADF:

Liam believes in the biological fact that there are only two sexes: male and female. And like many people, he considers the terms “sex” and “gender” to be interchangeable.

This belief differs from the one that Nichols Middle School promotes about gender identity. The school has embraced the belief that people can be male, female, or any number of other “genders,” and that a person’s expressed identity is what makes someone male or female, not their biology.

As Liam saw his school advocate its own beliefs about gender identity, he felt inspired to peacefully share his views on this issue. He respects the rights of others to share their beliefs, and he simply wanted to do the same.

In March 2023, Liam shared his beliefs by wearing a T-shirt with the message, “There are only two genders.” But during his first class of the day, Liam was removed by the school principal.

The principal told Liam that there had been complaints about his shirt and that he must remove it to return to class. Liam politely declined to remove the shirt, so the principal called Liam’s father and sent him home for the rest of the day....Liam has been unable to wear his shirt since that time.

Does Liam have a First Amendment right to wear his shirt to school? Or is it constitutional for the school to continue censoring the message he wishes to express?

Class Schedule Update

There will be no class on these dates:

1. Monday October 21 (Law School Holiday: Fall Break)

2. Tuesday October 22 (you voted to use 1 of our  pre-made-up classes to cancel class)

3. Wednesday October 23  (I canceled)

4.  Wednesday October 30 (I canceled)

That uses a total of 5 of our 10 pre-made-up classes

Here is my tentative plan for the rest of the 10:

 Monday and Tuesday November 25 & 26 (the 2 days before Thanksgiving)

M-T-W December 2, 3 & 4 

That means that our last class will be on Wednesday November 20.

 I plan to hold an optional exam review session on Monday December 2 during our regular class time and place. Our exam is December 9, so December 2 is the best date for this session.

Have a great, expanded Fall Break!

Court asked to overrule Smith

 See Scotusblog

Roman Catholic Diocese of Albany v. [Emami] Harris

 The petition for a writ of certiorari is granted. The judgment is vacated, and the case is remanded to the Appellate Division, Supreme Court of New York, Third Judicial Department for further consideration in light of Fulton v. Philadelphia, on Nov. 1, 2021.

 Issues: (1) Whether New York’s regulation mandating that employer health insurance plans cover abortions, which burdens a subset of religious organizations by forcing them to cover abortions, is “neutral” and “generally applicable” under Employment Division v. Smith and Church of the Lukumi Babalu Aye Inc. v. City of Hialeah; (2) whether New York’s mandate interferes with the autonomy of religious entities, in violation of the religion clauses of the First Amendment; and (3) whether — if, under the rule announced in Smith, the free exercise clause of the First Amendment allows states to demand that religious entities opposing abortions subsidize them — Smith should be overruled.

 

I just signed on to an amicus brief in this case asking the Court to grant cert again and overrule Smith. 

Becket's snapshot of the case:

 In 2017, New York state mandated that employers cover abortions in their employee health insurance plans. New York initially planned to respect conscience rights by exempting employers with religious objections. But facing pressure from abortion activists, New York narrowed the exemption to protect only religious entities that primarily employ and serve people of their own faith. This discriminatory rule punishes the many religious groups and ministries that provide critical community services and employ or serve people regardless of their faith. Following the order, a diverse coalition of religious groups that includes contemplative goat-herding Anglican nuns asked the New York state courts to protect them from this regulation that would force them to violate their deepest religious convictions about the sanctity of life. But the New York state courts refused. After asking the U.S. Supreme Court to protect the churches and ministries, the Justices asked the state courts to reconsider in light of Becket’s other landmark victory in Fulton v. City of Philadelphia. The New York courts refused to follow the Supreme Court’s guidance and again upheld the abortion mandate. Represented by Becket and Jones Day, the religious groups are again asking the U.S. Supreme Court to step in and protect the right of their churches and ministries to teach and serve without being forced to fund abortions.

First Amendment Fall 2024: Week Eight Assignments

 -- 1.Finish up last week's assignment: Casebook p. 1459-1482;  Snyder v. Phelps (link)

-- 2. Casebook p. 1482-1499; Casebook p. 1520-1541; Mahanoy School District

-- 3. Casebook p. 1541-1546; Re-read Rosenberger (link); Casebook p. 1585- 1592;

 

We will definitely get through 1 and 2 above. We may get through at least part of 3 above.

First Amendment Fall 2024: Week Seven Assignments

 -- Finish Carson v Makin; City of Boerne case (casebook p. 1214-1223); Casebook p. 1900-1907; Groff v. DeJoy (link)(follow link to opinion)

-- Reed v. Town of Gilbert (Casebook p. 1514-1518); Casebook p. 1459-1482;  Snyder v. Phelps (link)

Blog Posts for Town of Gilbert, Frisby, and Phelps

 We will not get through the entire free speech materials today. Primary focus will be on Reed, Frisby, and Phelps.

 

Wise Words from Madison

Content- and Viewpoint-based Speech Restrictions 

Town of Gilbert

Traditional Public Forum Theory

Public Forum Doctrine

Unborn Lives Matter (ULM) and the First Amendment

Frisby: Some Questions

Snyder v. Phelps

Snyder v. Phelps: Speech on Matters of Public Concern?

Preview of This Term's Free Speech case: Free Speech Coalition v. Paxton

 From Oyez (link):

Facts of the case

Texas enacted H.B. 1181, a law regulating commercial entities that publish or distribute material on internet websites, including social media platforms, where more than one-third of the content is sexual material harmful to minors. The law requires these entities to implement age verification methods to limit access to adults and display specific health warnings on their landing pages and advertisements. It defines sexual material harmful to minors using a modified version of the Miller test for obscenity.

Shortly after the law was enacted but before it took effect, plaintiffs sued, claiming H.B. 1181 violates their First Amendment rights and, for some plaintiffs, conflicts with Section 230 of the Communications Decency Act. The district court issued a pre-enforcement preliminary injunction, finding that the plaintiffs were likely to succeed on the merits of their claim and suffer irreparable harm. The court ruled that the age-verification requirement and health warnings fail strict scrutiny—that is, that it is not narrowly tailored to achieve a compelling government interest using the least restrictive means to achieve that interest—and that Section 230 preempts H.B. 1181 for certain plaintiffs. On appeal, the U.S. Court of Appeals for the Fifth Circuit concluded that rational basis review—i.e., rationally related to a legitimate government interest—was the proper standard of review and thus vacated the injunction against the age-verification requirement but affirmed as to the health warnings.

Question

Is a Texas law that requires any website that publishes content one-third or more of which is “harmful to minors” to verify the age of each of its users before providing access subject to “rational basis” review or “strict scrutiny”?

Watch this one. Internet pornography is an open sewer, and it will be interesting to see how the Court handles this issue.

Is the Public School System Constitutional

 Legal Scholar Prof. Phillip Hamburger writes "Is the Public School System Constitutional?" in the Wall Street Journal. Here is the link:

https://www.wsj.com/articles/public-school-system-constitutional-private-mcauliffe-free-speech-11634928722?mod=opinion_lead_pos5 

And here is a money quote:

 The public school system weighs on parents. It burdens them not simply with poor teaching and discipline, but with political bias, hostility toward religion, and now even sexual and racial indoctrination. Schools often seek openly to shape the very identity of children. What can parents do about it?.... 

Education consists mostly in speech to and with children. Parents enjoy freedom of speech in educating their children, whether at home or through private schooling. That is the principle underlying Pierce, and it illuminates our current conundrum.

The public school system, by design, pressures parents to substitute government educational speech for their own. Public education is a benefit tied to an unconstitutional condition. Parents get subsidized education on the condition that they accept government educational speech in lieu of home or private schooling.

 What are your thoughts? Should government be allowed to effectively coerce children to be taught only what the government thinks they ought to be taught? Is this consistent with freedom of thought, belief, and religion? 

Here is Prof. Hamburger's conclusion:

The public school system therefore is unconstitutional, at least as applied to parents who are pressured to abandon their own educational speech choices and instead adopt the government’s.

Parents should begin by asking judges to recognize—at least in declaratory judgments—that the current system is profoundly unconstitutional. Once that is clear, states will be obliged to figure out solutions. Some may choose to offer tax exemptions for dissenting parents; others may provide vouchers. Either way, states cannot deprive parents of their right to educational speech by pushing children into government schools.

Cutter v. Wilkinson (p. 1901)

 Cutter deals with the application of RLUIPA in the context pf prison, a place in which prisoners are completely under the control of prison officials.

"Section 3 of the Religious Land Use and Institutionalized Persons Act of 2000
(RLUIPA), 114 Stat. 804, provides in part: “No government shall impose a substantial
burden on the religious exercise of a person residing in or confined to an institution,”
unless the burden furthers “a compelling governmental interest,” and does so by “the
least restrictive means.” (p. 1901)

Since this section of RLUIPA applies only if "the substantial burden is imposed in a program or activity that receives Federal financial assistance," it is within the federal spending power (i.e. it is a condition of receipt of federal funds). Which state prisons receive federal funds?

Does it violate the Establishment Clause because it advances religion by providing rights only to religious prisoners? Notice that not even Justice Ginsburg thinks so! In her unanimous opinion she says this: 

Foremost, we find RLUIPA’s institutionalized-persons provision compatible with the Establishment Clause because it alleviates exceptional government-created burdens on private religious exercise. . . . Furthermore, the Act on its face does not founder on shoals our prior decisions have identified: Properly applying RLUIPA, courts must take adequate account of the burdens a requested accommodation may impose on nonbeneficiaries . . . and they must be satisfied that the Act’s prescriptions are and will be administered neutrally among different faiths. . . .
. . . Section 3 covers state-run institutions—mental hospitals, prisons, and the like—in which the government exerts a degree of control unparalleled in civilian society and severely disabling to private religious exercise. . . . RLUIPA thus protects institutionalized persons who are unable freely to attend to their religious needs and are therefore dependent on the government’s permission and accommodation for exercise of their religion.

Be aware of RLUIPA if you practice either in the area of prisoners' rights or in the area of zoning of real property.

Blog Posts On Trinity-Espinoza-Carson

 Trinity Lutheran: Which Children Are Unworthy?

 Trinity Lutheran and Espinoza

Trinity Lutheran Important Passages

Trinity Lutheran: Status or Use

Blaine Amendments & Trinity Lutheran Case (link)

 Espinoza: Religious Status or Religious Use/Conduct

 Espinoza: Bottom Line

 Carson v. Makin Important Passages