Category archives: The Courts

Pray Tell: Atheist Sues to Lead Legislative Prayer

by Alexandra McPhee

November 1, 2018

In a peculiar turn of events, secularist organization Freedom From Religion Foundation (FFRF) has argued before a federal appeals court that an atheist has the right to pray on the floor of the U.S. House of Representatives.

Dan Barker, co-founder of FFRF, desired to serve as Rep. Mark Pocan’s (D-Wis.) guest in leading the opening prayer for the following legislative session. Barker is an atheist. His request was denied because it was determined that he did not meet the chaplain-policy requirements to give an invocation on the House floor. His lawsuit argues that the policy unconstitutionally discriminates against nonbelievers under the Establishment Clause of the United States Constitution.

It is ironic and hypocritical that the group that routinely seeks to box out religion from the public square is now invoking the principles of religious freedom in order to make a secular invocation in our national legislature.

This anomaly notwithstanding, the greater issue is that the current judicial precedent surrounding the Establishment Clause is so malleable (one federal circuit court judge called it “a hot mess” and “a wreck”) that even something as unobtrusive as prayer is no longer guaranteed protection in the public square. Coach Joe Kennedy of Washington is one example, and there are many more like him across the nation.

As the late Justice Antonin Scalia observed, 1970s-era Establishment Clause doctrine has created a “geometry of crooked lines and wavering shapes” in this area of constitutional law. So what should we expect out of the judges responsible for interpreting constitutional law at our nation’s highest court and in lower courts across the country?

To establish sound Establishment Clause (or any constitutional) doctrine, the most intellectually honest and sustainable approach is to look to the understanding of the Founders at the time they penned and ratified the U.S. Constitution. This means looking at history. As the U.S. Supreme Court once said, “The line we must draw between the permissible and the impermissible is one which accords with history and faithfully reflects the understanding of the Founding Fathers.” This idea of looking at the understanding of the drafters of any law is as true for the latest entry of the U.S. Code as it is for the First Amendment.

Barker’s case involves legislative prayer, which is specially recognized for its undeniable historical precedent. In fact, legislative prayer, or “divine service,” has taken place as early as the 1700s. Largely because of its deep roots in history, legislative prayer is considered constitutional. It is an instructive example of how the courts have used and should use legal history to determine the constitutionality of religion in the public square. Unfortunately, the same is not true for judicial precedent surrounding religiously inspired monuments or certain tax exemptions, which some argue should fail constitutional muster under the Establishment Clause.

Fortunately, scholars have observed a resurgence in the role of legal history in modern judicial decision-making at the Supreme Court. What’s more, President Donald Trump’s laser-like focus on the appointment of judges has resulted in “appointees [that] are showing themselves to be strong spokespeople for what is generally described as the conservative viewpoint.” As such, law professor Arthur Hellman of the University of Pittsburgh said, “[n]ew blood reopens old issues.” And even though this use of legal history, or “originalism,” has become associated with “the conservative viewpoint,” the fact is that it is “ideologically neutral. On various stormy issues, both the conservative and liberal factions . . . have found safe harbor in historical reasoning.” What all this means is stable judicial precedent—not the confusion that exists today.

As with the doctrine of legislative prayer, we need to return to our legal historical roots and use what we find there as our guiding principles for understanding the constitutionality of religion in the public square.

Moreover, with mid-term elections on the horizon, it is critical that we vote in U.S. Senators who will help appoint judges that protect our constitutional rights. Our Republican-controlled Senate has faithfully stewarded its advice-and-consent powers by helping appoint judges who value historical reasoning. We ought to vote for candidates who will continue this trend.

Public prayer in schools and the government workplace, for instance, is more constitutional than it’s given credit for. You can feel assured in this by looking no further than Article III of the Northwest Territory Ordinance of 1787, in which the Founding-era Congress stated, “Religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged.”

As for Barker and his legislative prayer case—we’ll have to see whether the judges in his case conclude that history is on his side.

Ala. Supreme Court Justice: Roe Cuts Off the Unborn’s Full Right to Life

by Alexandra McPhee

October 31, 2018

In a concurring opinion, Justice Tom Parker of the Supreme Court of Alabama called on the nation’s highest court to overturn Roe v. Wade (1973) and remove the last major obstacle to the states’ right to enact protections for the unborn.

Earlier this month, the Supreme Court of Alabama affirmed that Jesse Livell Phillips will face the jury-recommended death penalty for the murder of his young wife and their unborn child. Prosecutors used Alabama’s Brody Act, one of several laws in Alabama that legally recognize the personhood of the unborn.

Justice Parker agreed with the outcome and wrote separately to denounce what he calls the “Roe exception.” Because of the U.S. Supreme Court’s holding in Roe, he writes, “the only major area in which unborn children are denied legal protection is abortion.” The “unborn child’s fundamental, inalienable, God-given right to life is the only right the states are prohibited from ensuring . . . .”

His proffer comes at a time when advocates on both sides of the life debate are keeping a close watch on the new makeup of the U.S. Supreme Court and how it might rule in a case that allows it to revisit the holding in Roe. But for years Justice Parker has urged that the decision in Roe is outmoded, that the holding in Planned Parenthood of Southeastern Pennsylvania v. Casey (1992) meant to address the decision in Roe only created more issues, and that the unborn are “entitled to the full protection of law at every stage of development.”

Many (though not all) state legislatures agree. Americans United for Life comprehensively documents the “legal recognition of the unborn and newly born” available in every state. Another article covers the numerous state laws governing crime, tort, health care, property, and guardianship that recognize the personhood of the unborn.

But Justice Parker points out that “in spite of voluminous state laws recognizing that the lives of unborn children are increasingly entitled to full legal protection, the isolated Roe exception stubbornly endures.”

At least two courts have ruled on the side of life in cases about statutes requiring abortion clinics to have hospital admitting privileges. But a case from the U.S. Court of Appeals for the Seventh Circuit may present the opportunity to strike at the heart of the matter and revisit the aberrational decision in Roe. If the justices on the U.S. Supreme Court take up the case on this ground, we hope they heed Justice Parker’s call for the restoration of the power of the states to protect the lives of the unborn in all areas of the law.

Pro-Life Law Upheld By Another Federal Court: Dare We Say “Momentum”?

by Cathy Ruse

October 22, 2018

The Louisiana law requiring abortionists to have hospital admitting privileges was recently upheld by the federal 5th Circuit Court of Appeals. Last month, a similar Missouri law was also upheld.

This feels like momentum. 

This column contains a good description of where the legal fight stands on requiring abortionists to obtain admitting privileges.

Good, but confusing, because the Supreme Court has confused things so much. 

Here’s my attempt at a shorter description:

Prior to the devastating 2016 Whole Women’s Health v. Hellerstedt ruling striking down Texas’ abortion safety regulations, the Supreme Court had long used the “undue burden” standard from Casey (1992) to measure the constitutionality of state abortion regulations: A law could stand if (1) the state had a legitimate reason for the law, and (2) the law did not impose an “undue burden” on obtaining an abortion (meaning it did not place a “substantial obstacle in the path” to obtaining an abortion).

But the Hellerstedt majority did not follow this legitimate reason + no undue burden formula. Instead, it asked whether the burdens from the law outweigh the benefits from the law

This is a new balancing test, and there is a lot of room for judicial shenanigans in balancing tests.

As the majority in Hellerstedt saw it, many Texas clinics threatened to close, so that showed a large burden, and since abortion was already safe in Texas (the court’s conclusion), additional safety requirements would provide little benefit.

Importantly, the court disregarded the legislators’ position that hospital admission privileges do provide a health benefit for women. 

But the recent 5th Circuit’s application of the balancing test came out differently.

In Louisiana, only one of the five clinics threatened to close. On the benefit side, the court gave deference to legislative position that admitting privileges provide “a real, and previously unaddressed, credentialing function that promotes the wellbeing of women.”

The really gratifying part of the 5th Circuit opinion is when they call out these abortionists for not even really trying to get admitting privileges—for “sitting on their hands.” One abortionist apparently threatened to close if his was the only abortion clinic left, but then when he learned that another clinic would be remaining open, he changed his position and threatened to close if his was one of only two clinics left. This shows bad faith, and the 5th Circuit wasn’t going to be played for fools. 

It would be best, of course, if the Supreme Court got rid of the Hellerstedt balancing test altogether. Perhaps that will happen now that there are a majority of justices who aren’t keen to make up fancy new standards to get the results they want. 

But in the meantime, pro-life laws are winning, even under a bad standard. 

The Image of God and the Pursuit of Truth in the Kavanaugh Hearing

by David Closson

October 1, 2018

On September 27, Supreme Court nominee Brett Kavanaugh and Dr. Christine Blasey Ford testified before the Senate Judiciary Committee regarding allegations of sexual assault from their time in high school.

During her testimony, Dr. Ford told senators that she feared for her life as an assailant she identified as Brett Kavanaugh assaulted her. Although she confessed to not knowing exactly when or where the incident took place, she said she was convinced Kavanagh was the perpetrator. Many viewers around the country found Ford’s story compelling and credible.

Hours later, Judge Kavanaugh forcefully denied any wrongdoing, and described the allegations against him as “vicious and false.” He vowed that “any kind of investigation, Senate, FBI, Montgomery County Police, whatever, will clear me.” Just as with Dr. Ford’s words, millions were moved by Kavanaugh’s powerful and heart-wrenching testimony.

At the end of the all-day hearing, the consensus from pundits across the political spectrum was that although both Ford and Kavanaugh gave strong testimonies, the facts surrounding the case are unchanged and the allegations remain uncorroborated.

Although Republicans preferred to move ahead Friday toward a confirmation vote, last minute discussions involving Senator Jeff Flake resulted in Republicans joining Democrats in postponing the vote for an additional week to allow for a supplemental FBI investigation concerning the claims raised by Dr. Ford. The investigation was approved by President Trump on Friday afternoon. 

While the political calculations surrounding Judge Kavanaugh’s hearing are complex, there are two important truths that Christian observers cannot afford to forget as they consider these latest developments: man’s creation in God’s image and the objective nature of truth.

1. Everyone is made in the image of God

Whoever you find more credible—whether Dr. Ford or Judge Kavanaugh—it is important to remember what the Bible teaches about human dignity. Although theologians debate the exact meaning of what it means to be made in the image of God, at the very least it means that man represents God to the rest of creation in a unique way. Consequently, every human being is an image bearer of God and maintains inherent dignity.

Therefore, it is impermissible for Christians to dismiss, demean, or degrade another person. This is true even when strong political disagreements exist. Our common human nature provides a basis for recognizing the value and dignity of everyone, including our political opponents. Further, Christians should rank first in showing empathy and concern for vulnerable women (James 1:27). Thus, disparaging comments directed toward Dr. Ford are inappropriate and morally repugnant. As was evident from her testimony, she is still affected by a traumatic event from her past. Christian observers should follow the lead of Republican and Democrat Senators who treated Dr. Ford with great dignity and respect.

In short, reclaiming a biblical understanding of the imago dei would go a long way in reclaiming the current disheartening state of the nation’s civil discourse. Christians should lead the way in restoring civility by recognizing and honoring everyone’s dignity.

2. Truth is an objective reality

Another truth Christians must reclaim is the notion of objective truth.

While questioning Judge Kavanaugh, Senator Cory Booker used a phrase that likely escaped the notice of many observers. Booker referred to Dr. Ford’s allegation of sexual assault as “her truth” three separate times. 

Although Senator Booker likely did not intend for anyone to read too deeply into his words, it is nonetheless important to note that there is no such thing as “her truth” or “his truth;” ultimately, there is only the truth.

Regardless of political affiliation, the discovery of truth—the exact nature of what happened thirty-six years ago with Judge Kavanaugh and Dr. Ford—ought to be everyone’s goal, especially Christians who believe in the reality of objective truth.

Therefore, although many Kavanaugh supporters are frustrated that President Trump and GOP leadership agreed to a week’s delay in the confirmation process for an FBI investigation, if Democrats are operating in good faith—a reasonable question given the process in which the allegations were held and subsequently leaked— then the accumulation of more evidence and testimony will vindicate Judge Kavanaugh rather than sink his nomination.

Christians should pray for a quick and thorough investigation with the result that the truth comes to light.

U.S. Courts of Appeals: No Vacancy

by Alexandra McPhee

September 24, 2018

You’ve probably seen a lot of press lately surrounding the United States Supreme Court, our nation’s court of last resort. This past weekend at the Values Voter Summit, Senate Majority Leader Mitch McConnell highlighted another issue that he considers a top priority: the confirmation and appointment of circuit court judges, the judges that sit on the United States Courts of Appeals.

President Trump and the Republican-led Senate have coordinated a system of confirmation and appointment of high-caliber judicial conservatives to our circuit courts with unparalleled efficiency. Since President Trump has been in office, 26 new judges have ascended the bench of circuit courts across the nation. Under the Obama administration, the Senate did not confirm a 24th judge until the fourth year of Obama’s presidency.

The Supreme Court issues many consequential decisions that have had an impact on pro-life policies, traditional marriage, and the free expression of religion. But the Majority Leader explained before the VVS audience that “a very, very small number of cases make it to the Supreme Court. The circuit courts are where most complex litigation ends.” As one article notes, judicial decisions from the circuit court “span a wide range of issues, from hot-button topics such as abortion, gay rights and the death penalty to voting rights, regulatory and business disputes, employment law and the environment.”

It is important that circuit court judges apply the law rather than seek to make the law based on their personal preferences. “These are lifetime appointments,” Senator McConnell emphasized. They will have a “longtime impact on what kind of country we’re going to have for the next generation.” In other words, five, ten, or twenty years from now, presently undecided areas of the law affecting our faith, family, and freedom will be decided by the circuit court judges appointed and confirmed today.

As Senator McConnell explained, “Republicans have only had the Senate, the House, and the White House for 20 of [the past] 100 years.” If we lose the Senate Republican majority, the influx of judges who will defend our constitutional rights will screech to a halt.

The Values Voter Summit is a yearly gathering of the most civically engaged and pro-family voters in our nation. All of us who have just gathered are participants, not spectators. The time is now to mobilize our friends and family to vote to keep a unified executive and legislative branch and fill our circuit courts with people “who believe that the job of a judge is to follow the law.”

Alexandra McPhee is the Director of Religious Freedom Advocacy at FRC.

3 Ways in Which Brett Kavanaugh Has Supported Religious Liberty

by Travis Weber

August 17, 2018

In light of Supreme Court nominee Brett Kavanaugh’s impending confirmation battle, Family Research Council conducted an overview of his record and explained how he would likely rule on the issues we are concerned about. From that review, here are three ways in which Judge Kavanaugh has defended religious liberty:

  1. Judge Kavanaugh Has Defended Religious Believers from the HHS Mandate

In Priests for Life v. HHS, he dissented from the D.C. Circuit’s denial of rehearing en banc, arguing that the HHS mandate substantially burdened the organization’s exercise of religion, pursuant to Burwell v. Hobby Lobby. This is a very important conclusion on an important issue and shows Judge Kavanaugh to have a right understanding of the religious freedom burdens that RFRA guards against in this context. While his assertion later in the same case that Hobby Lobby “strongly suggests” that the government has a compelling interest in ensuring broad access to contraceptives seems unnecessary, he did conclude that RFRA protected the claimants because the HHS mandate was not the least restrictive means of achieving any such interest.

  1. Judge Kavanaugh Has Defended Religious Expression in the Public Square

In Newdow v. Roberts, atheists had argued that “so help me God” in the presidential oath violated the Establishment Clause. The D.C. Circuit rejected their argument, and Judge Kavanaugh wrote a concurrence stating that such “longstanding practices do not violate the Establishment Clause as it has been interpreted by the Supreme Court.”

More recently, in Archdiocese of Washington v. WMATA, the Archdiocese of Washington attempted to purchase advertising space on the Washington Metro during the Christmas season, and the Washington Metropolitan Area Transit Authority refused to sell what it deemed a “religious” message for a religious organization. During oral arguments in this case, Judge Kavanaugh told WMATA’s lawyer that this was “pure discrimination” and an “odious” First Amendment violation, showing a keen awareness of potential violations of free speech and free expression with a religious basis.

[In addition], [h]e helped set up a voucher program supporting religious schools in Florida, and also represented the Adat Shalom Jewish group in their legal battle against a Maryland county that was trying to stop construction of a synagogue.

  1. Judge Kavanaugh Has Defended Religious Expression in Schools

During his time in private practice, Judge Kavanaugh chaired the Religious Liberty Practice Group at the Federalist Society, and worked pro bono to write amicus briefs in support of religious expression in schools. He wrote briefs in Good News Club v. Milford Central School, and Santa Fe Independent School District v. Doe, in which he argued that a public school must allow religious student clubs to use its facilities in a similar manner as other clubs, and that student-led prayer at football events did not violate the establishment clause, respectively.

For more, see: https://www.frc.org/issueanalysis/why-judge-kavanaugh-should-be-confirmed-to-the-supreme-court 

Why the Hysteria Over Roe? Because it Would Strike a Blow to Eugenics

by Patrina Mosley

July 6, 2018

It’s quite telling that the first reaction of many on the Left after Supreme Court Justice Kennedy’s retirement announcement was panic at the thought of a possible reversal of Roe v. Wade. With each new possible Supreme Court nominee, the immediate outrage from the Left has been “Roe v. Wade! Abortion rights will be overturned!” Really? Abortion rights is the only thing they can think of when the possibility of getting a new conservative judge on the court comes up?

There are plenty of other possible Supreme Court reversals that should keep them up at night. For example, the 1962 Engel v. Vitale decision said that school official-initiated prayer in public schools somehow violates the First Amendment. (Overturned! Time to call the snake handlers and tell them they’re back in business! Just kidding.) Or even the 2015 Obergefell v. Hodges 5-4 decision, particularly in light of how the legalization of same-sex marriage has impacted religious freedom, in which the recent Masterpiece Cakeshop v. Colorado Civil Rights Commission decision could set a precedent. Yet, condemning the supposed “constitutional right” to kill another innocent human being is horrifying to them. Why? Because it’s not about abortion rights or about women rights, it about eugenics. That’s not to say that all people who are pro-choice are in favor of or even aware of the eugenic influence of the abortion industry.

Charles Darwin’s theory of evolution provided the basis for the eugenics philosophy, in which “natural selection” was understood to favor certain races over “lesser races,” which became the foundation for eliminating “undesirables” (non-whites, the poor, the mentally and physically handicapped) so that the population was eugenically controlled to produce only the “right” kinds of people (white, wealthy, high intellect). His cousin and follower, Sir Francis Galton, is known as the father of eugenics because of his dedicated research and advancement of “the study of agencies under social control that may improve or impair the racial qualities of future generations either physically or mentally.” This philosophy attracted many “elites” of society, who were often wealthy, powerful, and racist, who desired to put thought into practice.

The eugenics movement gave birth to the abortion industry, which has been a major campaign contributor to the Democratic Party for decades (which has historically been the party of slavery, Jim Crow, and the KKK) in exchange for protecting “abortion rights.” There has been big money backing this philosophy since the early 20th century, including the Rockefellers, Andrew Carnegie, the Weisman Institute, and many others. The U.S. abortion policy is the pinnacle success of the American Eugenics Society (AES), which included members such as Margaret Sanger, founder of Planned Parenthood (originally called the American Birth Control League), William Vogt, and Alan Guttmacher, who were both former Planned Parenthood presidents. And yes, that’s Alan Guttmacher of the pro-abortion Guttmacher Institute.

Sanger’s organization changed its name to Planned Parenthood to invoke less political implications, and began to focus marketing efforts on “maternal health” and “family planning.” At the annual Galton Lecture of 1956, Fredrick Osborn, the head of the American Eugenics Society, said: “Let’s stop telling everyone that they have generally inferior genetic qualities for they will never agree. Let’s base our proposals on the desirability of having children in homes where they will get affectionate and responsible care, and perhaps our proposals will be accepted.”

It is no accident that today, nearly 80 percent of Planned Parenthood clinics are in minority communities, and although 13 percent of American women are black, they receive over 35 percent of the abortions - Margret Sanger’s: dream no doubt –“We don’t want the word to go out that we want to exterminate the Negro population.” It is also no mistake that the plaintiffs in the case of Roe v. Wade wanted to use someone they thought they could manipulate when they found Norma McCorvey (Roe).

Abortion is the Pinnacle Achievement of the Eugenics Philosophy

Ghastly connections can be drawn from the marketing of eugenics as “family planning” to abortion. The pinnacle achievement of this disingenuous and sinister movement is the 1973 Roe v. Wade decision.

In the majority opinion of Roe. v. Wade written by Justice Blackmun, he consults the works of the members of the British and American eugenics societies, lower federal court cases that “expressly invoked overpopulation as a basis for legalizing abortion,” Buck v. Bell, and other projects and organizations which contributed ideology and tactics to controlling the population growth of the “poor” and “uneducated.”

Blackmun’s opening paragraph even acknowledges the political and philosophical implications of proceeding with unrestricted access to abortion by stating: “In addition, population growth, pollution, poverty, and racial overtones tend to complicate and not to simplify the problem.”

He goes on to cite Glanville Williams (footnotes 9 and 21), a fellow of the British Eugenics society, president of the Abortion Law Reform Association, vice president of the Voluntary Euthanasia Society, and advisor to Britain’s Birth Control Commission. In Williams’ book, The Sanctity of Life and the Criminal Law, he states: “There is, in addition, the problem of eugenic quality. We now have a large body of evidence that, since industrialization, the upper stratum of society fails to replace itself, while the population as a whole is increased by excess births among the lower and uneducated classes.”

Blackmun also cites Lawrence Lader’s book Abortion (who also wrote Breeding Ourselves to Death) seven times (footnotes 9, 21, 26, 33, 44, 57, 58)—and indirectly relied on the people and groups to whom Lader’s book expressed profuse gratitude: Glanville Williams, Christopher Tietze, and at least five additional AES members that included Alan Guttmacher, officers of England’s leading abortion rights group, the Abortion Law Reform Association (whose leaders included Julian Huxley), and 27 members of the British eugenics society. Planned Parenthood also filed an amicus brief in Roe, as mentioned in a footnote in the Court’s opinion.

In addition, Blackmun cites the American Public Health Association (APHA), who openly praised Germany’s sterilization program and who would later publish an article praising abortion as a method of population control:

It would appear that legalization of abortion is probably the single most effective and practical measure that can be taken to lower the birthrate, and, by doing so, preserve the environment from further deterioration.

Notably, Blackmun also cites The Biological Time Bomb, “The New Biology and the Future of Man,” and many more eugenic references. An article from the The Human Life Review, reposted by Orthodoxy Today, provides an in-depth account of how the financial and ideological backing of the eugenics movement lead directly to Roe v. Wade. It is no secret among the elite and powerful that abortion is not so much about a woman’s body as it is the method of controlling the breeding of those they deem unfit to have children anyways. In a National Review article, the author reveals this:

In an interview with Elle, [Justice] Ginsburg said, “It makes no sense as a national policy to promote birth only among poor people.” That wasn’t 1927 — it was 2014. A co-counsel for the winning side of Roe v. Wade, Ron Weddington, advised President Bill Clinton that an expanded national birth-control policy incorporating ready access to pharmaceutical abortifacients promised immediate benefits: “You can start immediately to eliminate the barely educated, unhealthy, and poor segment of our country. It’s what we all know is true, but we only whisper it.” 

Just two months after Roe v. Wade was decided, The American Eugenics Society changed its name to “The Society for the Study of Social Biology,” to encourage greater acceptance and more discreet advancement of their agenda. Their announcement reassured the public that “The change of name of the Society does not coincide with any change of its interests or policies.” Its former head and leading eugenicist Frederick Osborn also explained the reason for the new name of their journal, from Eugenics Journal to Social Biology: “The name was changed because it became evident that changes of a eugenic nature would be made for reasons other than eugenics, and that tying a eugenic label on them would more often hinder than help their adoption. Birth control and abortion are turning out to be great eugenic advances of our time…”

The historical record shows that the poison of racism and elitism definitively infected the origins of the abortion rights movement by way of the eugenics movement, whose philosophical ideas have continued to this day. Overturning Roe v. Wade would be a monumental step in reversing this repulsive legacy of American life.

Will the Supreme Court Save Sexual Orientation Change Efforts?

by Peter Sprigg

July 2, 2018

There are significant differences between pro-life pregnancy resource centers that seek to provide pregnant women with alternatives to abortion and pro-family therapists or counselors that seek to provide people with unwanted same-sex attractions with an alternative to a homosexual identity and lifestyle. However, they have one thing in common—they are both loathed by the sexual revolutionaries. And in both cases, anti-faith “progressives” have tried to employ the machinery of government in an effort to legally stifle the work and message of these groups or individuals.

The recent Supreme Court ruling in NIFLA v. Becerra on the rights of pregnancy resource centers has given new legal hope to the practitioners of sexual orientation change efforts (SOCE), which legislators in several states have now banned for clients under age 18. (Others have written about this development here and here.)

NIFLA dealt with a California law, supported by abortion proponents, which required pregnancy resource centers to post specific, government-prescribed notices. Centers with a medical license were required to post a notice indicating how women could obtain abortions; unlicensed centers were required to post a prominent notice to the effect that they were not licensed to provide medical care. One network of pregnancy centers, the National Institute of Family and Life Advocates (NIFLA) sued.

In a 5-4 decision, the U.S. Supreme Court struck down that law, ruling that it compelled the pregnancy centers to proclaim a message they didn’t want to, in violation of the First Amendment.

Like NIFLA in the pregnancy center context, defenders of the right to seek counseling to overcome unwanted same-sex attractions (and of the right to offer such counseling) have argued that free speech also protects their activities. In challenges to laws banning sexual orientation change efforts (SOCE) with minors by licensed mental health providers in California and New Jersey, they argued that such laws in effect limit what a counselor or therapist may say to a client in the privacy of his or her office, and thus infringe upon the free speech of the care-giver.

Courts in two federal circuits rejected those arguments. But one of those decisions, Pickup v. Brown, came in for unfavorable attention in Justice Clarence Thomas’s majority opinion in the NIFLA case—thus raising serious doubts about whether these therapy bans could survive scrutiny by the Supreme Court.

California’s therapy ban was actually challenged in two separate lawsuits. In Welch v. Brown, a U.S. district court struck down the law, but in Pickup a district court judge upheld it. The Ninth Circuit consolidated the two cases on appeal, and a three-judge panel upheld the finding in Pickup and overturned the one in Welch.

The plaintiffs then appealed for en banc review by the full Ninth Circuit court, but they were rejected. However, three judges dissented from the denial of en banc review, backed by a strong  opinion by Judge Diarmuid O’Scannlain.

The Pickup opinion rested in part on the assertion that speech engaged in by licensed professionals in the course of their work is somehow exempt from scrutiny under the First Amendment (“SB 1172, as a regulation of professional conduct, does not violate the free speech rights of SOCE practitioners …”). This is exactly the argument that Justice Thomas rejected in his majority opinion in NIFLA. What is particularly striking is how much Justice Thomas’s majority opinion in NIFLA resembles Judge O’Scannlain’s dissenting opinion in the Pickup appeal.

Check out the comparison (citations, except to the Pickup case, are omitted):

Justice Clarence Thomas, U.S. Supreme Court, NIFLA v. Becerra (majority opinion)

June 26, 2018

. . .

[p. 6-8]

The First Amendment, applicable to the States through the Fourteenth Amendment, prohibits laws that abridge the freedom of speech. When enforcing this prohibition, our precedents distinguish between content-based and content-neutral regulations of speech. Content-based regulations “target speech based on its communicative content.” As a general matter, such laws “are presumptively unconstitutional and may be justified only if the government proves that they are narrowly tailored to serve compelling state interests.” This stringent standard reflects the fundamental principle that governments have “‘no power to restrict expression because of its message, its ideas, its subject matter, or its content.’”

The licensed notice is a content-based regulation of speech. By compelling individuals to speak a particular message, such notices “alte[r] the content of [their]speech.”

. . .

­ Although the licensed notice is content based, the Ninth Circuit did not apply strict scrutiny because it concluded that the notice regulates “professional speech.” Some Courts of Appeals have recognized “profes­sional speech” as a separate category of speech that is subject to different rules. See, e.g., … Pickup v. Brown, 740 F. 3d 1208, 1227–1229 (CA9 2014) … . These courts define “professionals” as indi­viduals who provide personalized services to clients and who are subject to “a generally applicable licensing and regulatory regime.” … Pickup, supra, at 1230. “Professional speech” is then defined as any speech by these individuals that is based on “[their] expert knowledge and judgment,” or that is “within the confines of [the] professional relationship,” Pickup, supra, at 1228. So defined, these courts except professional speech from the rule that content-based regulations of speech are subject to strict scru­tiny. See  … Pickup, supra, at 1053– 1056 … .

But this Court has not recognized “professional speech” as a separate category of speech. Speech is not unprotected merely because it is uttered by “professionals.” This Court has “been reluctant to mark off new categories of speech for diminished constitutional protection.” And it has been especially reluctant to “exemp[t] a category of speech from the normal prohibition on content-based restrictions.” This Court’s prece­dents do not permit governments to impose content-based restrictions on speech without “‘persuasive evidence … of a long (if heretofore unrecognized) tradition’” to that effect.

This Court’s precedents do not recognize such a tradi­tion for a category called “professional speech.”

Judge Diarmuid O’Scannlain, U.S. Court of Appeals for the Ninth Circuit, Pickup v. Brown (dissent from denial of en banc review)

January 29, 2014

. . .

The Federal courts have never recognized a freestanding exception to the First Amendment for state professional regulations. Indeed authoritative precedents have established that neither professional regulations generally, nor even a more limited subclass of such rules, remain categorically outside of the First Amendment’s reach.

. . .

The Supreme Court, however, has clearly warned us inferior courts against arrogating to ourselves “any ‘freewheeling authority to declare new categories of speech outside the scope of the First Amendment.’” The panel cites no case holding that speech, uttered by professionals to their clients, does not actually constitute “speech” for purposes of the First Amendment. And that should not surprise us—for the Supreme Court has not recognized such a category.

III

The Supreme Court has chastened us lower courts for creating, out of whole cloth, new categories of speech to which the First Amendment does not apply. But, that is exactly what the panel’s opinion accomplishes in this case, concealing its achievement by casually characterizing the communications prohibited by SB 1172 as nonexpressive conduct. Of course, this begs the question. The panel provides no authority to support its broad intimations that the words spoken by therapists and social workers, if they fall within the statutory language of SB 1172, should receive no protection at all from the First Amendment.

. . .

But as to the threshold issue—may California remove from the First Amendment’s ambit the speech of certain professionals when the State disfavors its content or its purpose?—the Supreme Court has definitively and unquestionably said “No.” It is no longer within our discretion to disagree.

The Supreme Court’s recent NIFLA case is not the first to question the reasoning of the 9th Circuit in upholding the California therapy ban in Pickup v. Brown. A 2017 en banc decision by the full 11th Circuit court struck down, on free speech grounds, a Florida law that barred doctors from asking patients whether they had guns in their home. In this decision (Wollschlaeger v. Governor of Florida, February 16, 2017), Judge Adalberto Jordan, writing for nine of the eleven judges, also questioned the 9th Circuit ruling in Pickup:

The Ninth Circuit also adopted Justice White’s approach, but in a case upholding a California law prohibiting mental health practitioners from providing sexual orientation change efforts (SOCE) therapy—meant to change a person’s sexual orientation from homosexual to heterosexual—to children under the age of 18. See Pickup v. Brown, 740 F.3d 1208, 1225–29 (9th Cir. 2013) (as amended on rehearing)… .

There are serious doubts about whether Pickup was correctly decided. As noted earlier, characterizing speech as conduct is a dubious constitutional enterprise. See also id. at 1215–21 (O’Scannlain, J., dissenting from denial of rehearing en banc) (criticizing the Pickup panel for, among other things, not providing a “principled doctrinal basis” for distinguishing “between utterances that are truly ‘speech,’ on the one hand, and those that are, on the other hand, somehow ‘treatment’ or ‘conduct’”).

. . .

If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion … .” W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943) (Jackson, J.). Our decision applies this timeless principle to speech between doctors and patients, regardless of the content. The First Amendment requires the protection of ideas that some people might find distasteful because tomorrow the tables might be turned.

The Supreme Court precedent of NIFLA is clearly more significant, since it is binding nationwide. Of course, a key difference between the NIFLA (pregnancy center) case and the Pickup (therapy) case is that NIFLA involved what is called “compelled speech” (the government forcing a private entity to communicate the message favored by the government); whereas Pickup involves an actual prohibition by the government against private speech that is disfavored by the government (if its aim is helping a client to change sexual orientation). Nevertheless, by affirming that “professional speech” is protected by the First Amendment, the Supreme Court has cast serious doubt on the constitutionality of bans on sexual orientation change efforts.

This should give hope to clients seeking to overcome unwanted same-sex attractions and to the counselors and therapists who help them. And it should give pause to legislators, like those in California now considering an even more draconian therapy ban (AB 2943).

Bans on sexual orientation change efforts lack any merit to begin with. But legislators tempted to vote for them (and governors tempted to sign them) should realize that there is a good chance these bills are unconstitutional, and that they will draw a rebuke from the U.S. Supreme Court in the fairly near future.

Are Justices Sotomayor and Ginsburg For or Against Religious Hostility?

by Travis Weber , Andrew Rock

June 29, 2018

On Tuesday, the Supreme Court upheld President Trump’s reasonable national security measures by a 5-4 vote in Trump v. Hawaii. In one of the dissents, Justice Sotomayor (joined by Justice Ginsburg) drew from the Court’s recent opinion in Masterpiece Cakeshop v. Colorado Civil Rights Commission to argue that President Trump’s “bias” against Muslims invalidated the travel ban because government actions cannot be motived by anti-religious sentiment. Yet less than a month ago, Justice Ginsberg (joined by Justice Sotomayor) dissented in Masterpiece, ignoring the blatant religious hostility against Jack Phillips that served as the basis for the Court’s ruling in his favor. The position of these two dissenters in Trump v. Hawaii would seem to lead to support for Jack Phillips, but it never materialized.

In Trump v. Hawaii, much biased media coverage obscured the facts of a relatively simple case. President Trump issued a proclamation that temporarily suspended entry into the U.S. of persons from countries which did not provide adequate background check information. It made no mention of any religion (six of the eight countries on the list are mostly Muslim, but the other two were not – and numerous Muslim-majority countries were not on the list). The Supreme Court held that it was well within President Trump’s authority to implement this measure as a matter of national security.

Justices Sotomayor and Ginsberg were having none of it. They insisted that the “ban” (another misnomer, since the regulations didn’t flatly ban anyone, but set up different requirements for different people trying to enter the U.S.) violated the First Amendment because of President Trump’s comments about Islam’s history of violence. The Justices reasoned that because religious hostility is not a valid basis for government action, and since these regulations were supposedly enacted out of some hostility to Muslims, then they are invalid. Justices Sotomayor and Ginsburg referenced Masterpiece, which relied on the principle that government hostility to religion violates the free exercise protections of the First Amendment, to support their argument that the Court should decide differently and to imply that the majority decision was hypocritical. They ignored the fact that they both dissented against the very decision they attempted to invoke.

Indeed, Justice Ginsberg (joined by Justice Sotomayor) penned a dissent in Masterpiece which dismissed the obvious religious hostility against Jack Phillips. The Colorado Civil Rights Commission had compared Christians like Mr. Phillips who wanted to follow their consciences to Nazis and slave owners. These inflammatory statements did not concern Justices Ginsburg and Sotomayor, who said that “whatever one may think of the statements in their historical context…I see no reason why the comments of one or two Commissioners should be taken to overcome Phillips’ refusal to sell a wedding cake to Craig and Mullins.”

Yet Justices Ginsburg and Sotomayor can’t have it both ways. If they believe religious hostility can serve as a basis for relief, as they state in Trump v. Hawaii, they also have to be prepared for to provide that relief for Jack Phillips. Conversely, if a decision can still be valid despite evidence of religious bias (as they argued in Masterpiece), then they should have supported the president’s reasonable national security regulations in Trump v. Hawaii. The Justices cannot ignore obvious religious bias when it is politically convenient, and turn around and use the same argument to attack other measures they don’t like.

Gorsuch on International and Foreign Law

by Travis Weber

April 6, 2017

It hasn’t gotten a lot of attention, but Judge Gorsuch’s exchange with Senator Ben Sasse about international and foreign law at his confirmation hearing offers helpful clues that he’d rule properly in this area:

SASSE: As a sitting Supreme Court justice tasked with upholding the U.S. Constitution, is it ever appropriate to cite international law? And if so, why?

GORSUCH: It’s not categorically improper. There are some circumstances when it is not just proper but necessary. You’re interpreting a contract with a choice of law provision that may adopt foreign law. That’s an appropriate time . . .

Treaties sometimes require you to look at international law by their terms. But if we are talking about interpreting the Constitution of the United States, we have our own tradition and own history. And I don’t know why we would look to the experience of other countries rather than to our own . . .

And so as a general matter, Senator, I would say it is improper to look abroad when interpreting the Constitution . . .

Judge Gorsuch is absolutely right. In his answer to Senator Sasse, he has articulated a vision of the Constitution which guards against the surreptitious importation of standards from other countries which have no bearing on our Constitution (but which the Supreme Court has done from time to time).

Meanwhile, he properly admits that a foreign legal standard in a “choice of law” provision may be consulted (in these cases, the parties to the agreement have stipulated that the laws of another country shall be used to adjudicate disputes between them, and it is entirely proper to consult whatever source of foreign law has been stipulated).

He also made proper reference to treaties as a valid source of international law.

International law (laws between nations) is distinct from foreign law (the laws of a foreign nation), as properly understood, only consists of two areas.

The first is the treaty, or agreement between nations. When nations become parties to a treaty, they agree to be bound explicitly by the treaty’s terms. Yet legal activists, as they so often do in the United States with regard to the Constitution, recognize that their preferred radical policies aren’t contained within the treaty, so they twist its terms or use other mechanisms in the international legal order to push their policies, which they try to term as “law.” Yet the fact that they call them law doesn’t make them so. Just as we must guard against activist attempts to read new “rights” into statutes and the Constitution domestically, we must guard against efforts to read them into the text of treaties internationally.

The second area of international law is customary international law, which is defined as a longstanding practice engaged in by a very large number of states who engage in it because they believe they are legally bound to do so. This is a high standard and not much reaches it. But that doesn’t stop activists from trying to claim their radical policies are “customary international law.” Again, just because they say so over and over again doesn’t make it true.

Judge Gorsuch will not be hoodwinked by such shenanigans. He has articulated a limited (and proper) view of international and foreign law which shows he understands the dynamics in this area. Once again, he has shown that he will be a great originalist and is eminently qualified to be confirmed to the Supreme Court.

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