Liberties Reporting on First Amendment freedoms

Keeping liberty waiting

Religious Liberty | First Amendment cases may not get a Supreme Court hearing until a ninth justice is seated
by Bonnie Pritchett
Posted 9/25/18, 05:04 pm

On Thursday, the U.S. Supreme Court will issue a list of cases initially accepted for arguments in the 2018-19 session. From close to 2,000 petitions, the court will accept only a handful. And until a ninth justice is seated to replace retired Justice Anthony Kennedy, experts predict the eight-justice court could steer clear of important cases with First Amendment implications, many united by one question: Will America’s pluralistic society tolerate public expressions of Christian faith?

Two cases under consideration charge the justices with defining the word “sex” in Title VII of the Civil Rights Act of 1964, which prohibits discrimination in employment “based on race, color, religion, sex, and national origin.” The legal standard requires judges defer to a statute’s intended meaning when it was drafted. But some federal appellate judges, zealous to advance the LGBT rights agenda, have ruled “sex” includes sexual orientation and gender identity.

In R.G. & G.R. Harris Funeral Home v. EEOC, Detroit-based funeral home employee Anthony Stephens filed a complaint with the Equal Opportunity and Employment Commission claiming the owners of the business said he could not dress like a woman while at work. Stephens claimed protection under Title VII as a transgender employee. But the Christian owners of the funeral home believe humanity includes only males and females as God created them, according to Genesis 5:2. The 6th Circuit ruled in Stephens’ favor, and the funeral home petitioned the high court.

Similarly, in Altitude Express v. Zarda, Donald Zarda, now deceased, sued the owners of New York–based Altitude Express, claiming he was fired for being homosexual. The owners of the sky diving company said they fired him for making inappropriate comments to a customer. The 2nd Circuit ruled for Zarda, interpreting “sex” to include sexual orientation, and the company appealed.

In a third case of dictionary redo not yet before the court, the 3rd Circuit expanded the meaning of sex to include gender identity as it applies to Title IX, the federal education nondiscrimination statute. Attorney Randy Wenger, who argued Doe v. Boyertown Area School District before the circuit court, told me the case could be appealed to the U.S. Supreme Court this fall.

In a case regarding religious symbols, the American Humanist Association sued for the removal of a 1925 World War I memorial, the Bladensburg Peace Cross. The cross’s defenders want the Supreme Court to recognize the historic context of the nation’s religious displays. A ruling against the Bladensburg Peace Cross would threaten the display of dozens of similar monuments on government land, including at Arlington National Cemetery just outside the nation’s capital, said Kim Colby, director of the Christian Legal Society’s Center of Law and Religious Freedom.

Atheists’ objection to Christianity’s historical influence includes the use of neutrally applicable government grants to preserve historic buildings, including churches. In FFRF v. Morris County Board of Freeholders, Morris County, N.J., is asking the court to defend its community’s historic sites.

Public prayer is also under consideration. The 9th Circuit ruled in Kennedy v. Bremerton School District that public school employees cannot pray at school events “if anyone can see them,” said Kelly Shackelford, president of First Liberty, who is representing former high school football coach Joe Kennedy, who appealed to the Supreme Court.

“I would love to see them take that case,” Colby told me. “I think teachers in the public schools do not have adequate protections for their religious expressions.”

Two other cases address unfinished business left in the wake of the Masterpiece Cakeshop v. Colorado Civil Rights Commission decision. Christian business owners who refused to create gay-affirming products in Klein v. Oregon Bureau of Labor and Industries and Lexington–Fayette Urban County Human Rights Commission v. Hands On Originals are contending for their rights to operate their business according to their faith.

“These cases may need to be addressed under [the Religious Freedom and Restoration Act] or the Free Exercise Clause,” Walter Weber, senior counsel for the American Center for Law and Justice, told me. “I cannot predict how soon the court will be willing to grapple with this, but I do think it is inevitable that the court will have to do so.”

But whether any of these complaints receive a hearing may depend on how many justices fill the bench. As of Tuesday, the appointment of a ninth justice is indeterminately on hold.

“As happened after Justice Scalia died, an eight-justice court will likely look for narrow grounds to dispose of cases, and, if all else fails, split 4-4 when there is no majority,” Weber said. “That goes for the First Amendment cases as well as any others.”

Becket Becket Shamber Flore (right), a former foster child adopted through St. Vincent’s Catholic Services who testified in court, with her parents

The fight for religious adoption agencies

A federal judge earlier this month ruled that a Michigan lawsuit challenging religious adoption and foster agencies that won’t place children with same-sex couples will move forward.

The American Civil Liberties Union and its Michigan chapter sued the heads of Michigan’s Health and Human Services and Children’s Services Agency on behalf of two same-sex couples who were turned away from St. Vincent’s Catholic Services and Bethany Christian Services when they tried to adopt a child in foster care, according to The Detroit News. The plaintiffs in the suit, Dumont v. Lyon, asked U.S. District Judge Paul Borman to bar the state from entering into contracts with or providing taxpayer money to private agencies that won’t place children with same-sex couples. St. Vincent’s asked Borman to throw out the case on First Amendment grounds, but he declined.

The ACLU argues that the Establishment Clause of the First Amendment to the U.S. Constitution makes it illegal for the government to work with religious organizations, according to Mark Rienzi, president of Becket, the law firm defending St. Vincent’s. But, he added, “the Establishment Clause says and does no such thing.” Rienzi told me it was clear the lawsuit is trying to shut down St. Vincent’s.

“I think the whole case is a shame,” he said. “It seems like an unnecessary culture war fight. St. Vincent’s does great work and helps lots of children, and they are doing a good job, and it seems to be in the interest of families and kids to continue to allow them to do that.”

Rienzi pointed out that the couples in question are not barred from adopting in Michigan, and they drove past other agencies who would have assisted them on their way to St. Vincent’s.

Alabama, Texas, Virginia, North Dakota, and South Dakota currently have laws that allow state-contracted agencies to refuse placements on religious grounds, all of which could come under scrutiny if the ACLU wins the Michigan case. —Rachel Lynn Aldrich

Facebook/Students for Life of America Facebook/Students for Life of America

Victory for a pro-life club

Students at a New Mexico middle school finally will get to start a pro-life club on campus, thanks to intervention from Students for Life of America and the Thomas More Society.

Dylan Fredette tried to start Phoenixes for Life, a Students for Life group, at Rio Rancho Middle School in Rio Rancho, N.M., in November 2017 and again in March 2018, but he was stymied both times by school officials. Students for Life and the Thomas More Society sent a letter to Rio Rancho Public Schools Superintendent V. Sue Cleveland and Rio Rancho Middle School Principal Lynda Kitt on Sept. 18, saying the denial was a violation of the First Amendment and the school’s own policies. The letter also threatened a federal civil rights action.

Students for Life reported two days later that the school backed down and will allow Fredette’s younger brother, Isaiah, start the club, since Fredette has already graduated.

“This is great news and we are proud of Phoenixes for Life for not giving up their fight—next time, we just hope that schools remember that pro-lifers have rights before we have to send them a demand letter,” Christina Coffman, Rocky Mountains Regional Coordinator for Students for Life, said in a statement. —R.L.A.

Censored no more

In a win for First Amendment rights of student journalists, a Vermont high school backed down after censoring a story the students wrote about a school employee facing disciplinary action.

Burlington High School guidance director Mario Macias faced six charges from the Vermont Education Agency for unprofessional conduct, including falsifying information on a student’s transcript, creating a hostile work environment, ridiculing an employee publicly, and revealing sensitive information about a student.

After obtaining a copy of the charges, journalism students published the story on the school newspaper’s website on Sept. 10.

A day later, school administrators removed the article. The students then contacted the Student Press Law Center to see if they had been within their rights to publish the story. Quick public condemnation of censorship followed, including a joint statement from the Vermont Press Association and the New England First Amendment Coalition.

On Sept. 13, interim Principal Noel Green allowed the article to be republished, but the school instituted a policy of reviewing all articles prior to publication. The Burlington School Board quickly rescinded implementation of the policy, which violated Vermont’s New Voices Act, passed in 2017 to protect student journalists’ work.

The board promised to consult “local First Amendment experts” before implementing additional policies. —Harvest Prude

Bonnie Pritchett

Bonnie reports on First Amendment freedoms for WORLD Digital.

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