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In a recent opinion piece, a professor at Northwesterns Pritzker School of Law lamented that religious freedom has become an excuse to break the law. Nothing could be further from the truth.

The First Amendment protects Americans from being compelled to violate their faith in word or deed. Thats Constitutional Law 101.

Until recently, however, scholars and jurists have largely focused on religious speech while ignoring the robust protections the First Amendment affords to religious deeds too.

But thats starting to change. Increasingly, the U.S. Supreme Court has recognized that the First Amendment doesnt just protect freedom of belief. It also protects the freedom to exercise ones religious beliefs.

And as the Framers and ratifiers of the First Amendment understood, free exercise is more than what a person does in a house of worship. It encompasses all aspects of life.

>>>Its the First Amendment, Stupid: Supreme Court Holds That Free Speech Prevails in Challenge to Anti-Discrimination Law

Sadly, its no surprise to see novel arguments for curtailing religious freedom. Like in centuries past, animus still rears its ugly head against those who hold religious beliefs that are not in voguethough only a few years ago many of these same beliefs would have been considered mainstream.

When hearts and minds remain unpersuaded to adopt the beliefs of the day, mainstream advocates have reframed disagreement as discrimination and dialogue as hate. Even the long-protected right to speakor not to speakon religious topics has come under attack.

But again, as the Supreme Court recently explained in 303 Creative v. Elenis, the First Amendment prohibits governments from compelling ideological conformity. After all, its not discrimination for someone to refuse to speak a message with which they disagree.

This basic tenet of constitutional law poses a problem, however, for those who want to enforce ideological homogeneity. Perhaps thats why the Northwestern law professor didnt really discuss the First Amendment in his recent op-ed, and why others are so troubled by the Supreme Courts recent litany of decisions protecting free speech (including the right not to speak) and religious freedom.

Maybe they are troubled by the notion that a football coach can pray in public or that Americans are free to hold differing views on gender identity and sexuality. But those disagreements do not change the law.

Contrary to its critics assertions, the Supreme Court is not placing a thumb on the scale for religious claims and allowing litigants to use religion as a pretense to break the law. On the contrary, the court is simply following the highest positive law in our land: the U.S. Constitution, which protects against restrictive government action even in times of crisis like a pandemic or warincluding when that action enjoys popular support.

This fundamental notion is why so many lawyers and scholarsand more recently, at least four current justiceshave been critical of the courts 1990 decision in Employment Division v. Smith, which permitted the government to prohibit or restrict religious practices so long as the government does so through a generally applicable law that is neutrally applied.

>>>The Constitution Allows a Level Playing Field, but Not a Rigged Game

Indeed, the Smith decision was so hotly debated that a bipartisan majority in Congress passed the Religious Freedom Restoration Act, which President Bill Clinton signed into law, to protect religious freedom RFRA reflected what the First Amendment said all along: The government cant just trample on religious freedom under the fig leaf of neutrally enforcing a generally applicable law.

Of course, this law and others like it have also come under fire from those who favor ideological conformity over religious freedom. But the First Amendment, RFRA, and similar laws exist to protect beliefs that some, perhaps even many, might find disagreeable.

Thats good news for everyone, especially religious minorities. The vast majority of human history has featured persecution of religious groups who, because of their faith, lived differently from most of the society around them.

Recognizing that history, our fledgling nation chose a better course and enshrined the free exercise of religion as one of our first freedoms.

America has been a refuge for those who endured religious persecution precisely because the law does not condition religious freedom on a ruling partys will or the whims of popular opinion. The courts recent decisions rightly recognize that religious freedom is not a second-class right and are returning religious liberty to its proper, preferential place.

Religious freedom isnt an excuse to break the law. It is a right enshrined in our nations highest law.

And when courts uphold that right, they uphold the law. Thats something we should celebrate, for ourselves and for the oppressed who look to our nation for refuge.

Read the original here:
Public Opinion Is No Excuse To Ignore the First Amendment - Heritage.org

When parents no longer live together and mom or dad gets remarried, what should the child call the new adult in their lives? Should the child be permitted to call their stepfather dad or their stepmother mom? Does it matter if the child has half-siblings or step-siblings who call the new adult by a derivative of mom or dad?

Parents have a fundamental constitutional right to raise their children as they deem fit. See, e.g., Interest of S.K.L.R., 256 A.3d 1108, 1126 (Pa. 2021); see also Troxel v. Granville, 530 U.S. 57, 66 (2000). When parents in Pennsylvania engage in custody disputes, they give up a part of this right by asking the courts to determine the best interest of the child by considering the sixteen enumerated factors set forth in 23 Pa.C.S. Section 5328(a). These disputes often implicate First Amendment rights to freely exercise religion and freedom of speech, but it is not always clear whether the First Amendment trumps the best interest of the child or the line where one becomes more important than the other.

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Do Parents Have First Amendment Rights? | The Legal Intelligencer - Law.com

Last week, the Supreme Court issued a pernicious decision declaring that Colorado’s public accommodations law prohibiting discrimination against gays and lesbians could not be applied to a business engaged in “expressive activity,” such as a wedding website designer who opposes gay marriage. Justice Neil Gorsuch, in his majority opinion, insisted that doing so would “force” the designer to “endorse” gay marriage in violation of her “free speech right” not to act in a manner contrary to her Christian belief that marriage should only be a union of a man and a woman.

The court’s willful failure to distinguish discriminatory conduct from speech is not just a blow to LGBTQ rights and dignity; it also threatens to run roughshod over our modern legal system and undo decades of progress in combating invidious discrimination against historically marginalized Americans.  

Coming the day after the same majority struck down affirmative action, and the same day that it invalidated the Biden administration’s effort to provide student debt relief to 45 million Americans, the Colorado case fits squarely into the Roberts Court’s broader agenda: prioritizing the interests of the powerful, wealthy, white, male, Christian, heterosexual groups to which the majority of the court (today as always) belong over the interests of everyone else. To that end, the court’s decision makes free speech a potential license for businesses and individuals to disregard legal protections for disadvantaged groups — and virtually any other state or federal law that advances a value with which they disagree.

The decision was based on a website designer’s supposed fear of appearing to endorse gay weddings if not permitted to discriminate against them, but it certainly isn’t limited to website designers. Most people providing wedding services — officiants, musicians, photographers, florists, caterers and bartenders — are providing an “expressive” service, so presumably all of them are now entitled to refuse to provide their otherwise publicly available services for a wedding that violates their sincere beliefs.

And there is no reason — certainly none offered in the majority decision — that this license to discriminate is limited to gay couples. Rather, the court’s reasoning (which relied on free speech rights rather than religious freedom) is readily applicable to interracial marriages, interfaith marriages, marriages involving one or more persons of no religious faith, marriages between persons of different nationalities, and so on. It is possible that, in the wake of this decision, in some parts of the country couples from disfavored groups will find it difficult to host a wedding. 

At the same time, nothing in the court’s reasoning limits its impact to weddings. Under Gorsuch’s logic, any public accommodation that includes an “expressive” component — that is, “images, words, symbols, and other modes of expression” — has the right to refuse to serve groups in a manner that violates their sincerely held beliefs. While the court insisted that there are “no doubt innumerable goods and services that no one could argue implicate the First Amendment,” it didn’t bother to identify any.

In fact, there are few human endeavors that don’t rely on “modes of expression,” and there is certainly nothing more inherently “expressive” about website design than the arts, education, technology, law, science or hospitality (including hotels, restaurants and entertainment facilities). In other words, the opinion opens the door for almost any business to argue that the First Amendment entitles them to refuse to serve gays, Blacks, Jews, women, immigrants or any other group, where doing so serves their sincerely held beliefs.

Just as the court’s logic provides no basis to limit its scope to discrimination against gay couples, it likewise provides no basis to limit it to the provision of services. If requiring a business to serve certain groups can violate the business’s free speech rights, there is no reason employers could not make the same argument about laws prohibiting them from discriminating in their hiring and firing decisions.

Indeed, an employer’s argument that “by requiring me to hire women, you are forcing me to endorse the view that women belong in the workplace, contrary to my sincerely held beliefs,” is more plausible than the argument adopted by the court that the Colorado antidiscrimination law “forced” the website designer to “endorse” gay marriage.

For much the same reasons, the court’s analysis invites renewed claims that private clubs have a right to discriminate against any group whom they believe should not be socializing at the same place as their preferred members. Likewise, private schools, which certainly engage in “expressive” activity, have a new opening to argue that they have a right to exclude any group that they believe should not be educated in the same facility as their preferred students, bringing back segregated education. The decision provides no straight line for resegregating public schools, but the continued march of the court’s new “free speech” jurisprudence just might take public schools, and other services funded by taxpayers, out of the picture.

The Supreme Court has rejected arguments that religious freedom exempts persons from paying taxes based on religious objections, but this is yet another argument that could now be resurrected under the guise of free speech. If requiring a business to provide a service to gay persons on the same terms as it provides it to everyone else is the equivalent to requiring the business to endorse gay marriage, requiring taxpayers to support vaccine research (or any other government activity) to which they are morally opposed raises similar “forced endorsement” issues, particularly given the court’s penchant for equating money with speech. 

It’s no coincidence that this alignment of the Supreme Court supermajority with the priorities of the GOP’s extreme right flank comes with the backdrop of financial scandals involving at least two of the justices and the longtime leader of the conservative Federalist Society, Leonard Leo. As an advisor to President Trump, Leo handpicked three of these justices for the very purpose of carrying out this rightwing agenda; he also played a personal role in supporting and funding the cases to strike down affirmative action, narrow legal protection for gays, and invalidate student debt cancellation. Leaving nothing to doubt, he has also orchestrated the provision of gifts and other things of value worth hundreds of thousands of dollars from his dark money funds and two of his billionaire associates to Justice Alito and Justice Thomas, as well as to multiple members of Thomas’s family. 

As President Biden observed last week, “this is not a normal court.”  But it is not enough to identify the problem — the president and Congress need to take immediate action to address the problem. We urgently need federal legislation imposing ethics rules on the nine justices at least as strict as those that already apply to every other federal judge in the country. And to address the immediate emergency of a renegade court dominated by six nakedly partisan justices determined to roll back civil rights and other progress, Congress must enact federal legislation to expand the court.

Ben Clements is the chairman and senior legal advisor of Free Speech For People, a former federal prosecutor and former chief legal counsel to the governor of Massachusetts. 

Continued here:
The Roberts Court twisted the First Amendment into a tool of discrimination - The Hill

Nearly 500 anti-LGBTQ bills have been introduced in state legislatures in the U.S. in 2023. Many of those bills seek to reduce or eliminate gender-affirming care for transgender minors or to ban drag performances in places where minors could view them.

Most of those bills have not become law. But many of those that have did not survive legal scrutiny when challenged in court.

Anti-LGBTQ laws that federal judges have concluded do not pass constitutional scrutiny include anti-trans legislation in Arkansas and anti-drag legislation in Tennessee.

A notable feature of these rulings for me a First Amendment scholar is how many rely on the First Amendments protection of free speech. In several of the decisions, judges used harsh language to describe what they deemed to be assaults on a fundamental American right.

Heres a summary of some of the most notable legal outcomes:

Several states passed laws aimed at restricting drag performances. These laws were quickly challenged in court. So far, judges have sided with those challenging these laws.

On June 2, 2023, a federal judge permanently enjoined Tennessees attempt to limit drag performances by restricting adult entertainment featuring male or female impersonators. When a law is permanently enjoined, it can no longer be enforced unless an appeals court reverses the decision.

The judge ruled on broad grounds that Tennessees law violated freedom of speech, writing that it reeks with constitutional maladies of vagueness and overbreadth fatal to statutes that regulate First Amendment rights. He also ruled that the law was passed for the impermissible purpose of chilling constitutionally-protected speech and that it engaged in viewpoint discrimination, which occurs when a law regulates speech from a disfavored perspective.

Three weeks later, a federal judge granted a temporary injunction against Floridas anti-drag law on similar broad grounds.

And in Utah, a federal judge required the city of St. George to grant a permit for a drag show, ruling that the city had applied an ordinance in a discriminatory manner in order to prevent the family-friendly drag show from happening. As in the other cases, the judges ruling was based on First Amendment precedent.

On June 20, 2023, a federal judge permanently enjoined an Arkansas law, passed in 2021 over the veto of then-Gov. Asa Hutchinson, preventing transgender minors from receiving various kinds of gender-affirming medical care, including puberty blockers and hormone therapy.

The judge held that Arkansas law violated the Fourteenth Amendments equal protection clause which ensures laws are applied equally regardless of social characteristics like race or gender because the law discriminated on the basis of sex.

Arkansas claimed its law was passed in order to protect children and to safeguard medical ethics. The judge agreed that these were legitimate state interests, but rejected Arkansas claim that its law furthered those ends.

The judge also held that Arkansas law violated the First Amendment free speech rights of medical care providers because the law would have prevented them from providing referrals for gender transition medical treatment.

During June 2023, federal judges in Florida and Indiana granted temporary injunctions against enforcement of similar state laws. This means that these laws cannot be enforced until a full trial is conducted and only if that trial results in a ruling that these laws are constitutional.

In striking down these unconstitutional state laws on First Amendment grounds, many judges went out of their way to reinforce the point that freedom of speech protects views about sexual orientation and gender identity that may be unpopular in conservative areas.

In his ruling on the St. George, Utah case, U.S. District Judge David Nuffer stressed that Public spaces are public spaces. Public spaces are not private spaces. Public spaces are not majority spaces. The First Amendment of the United States Constitution ensures that all citizens, popular or not, majority or minority, conventional or unconventional, have access to public spaces for public expression.

Nuffer also noted that Public officials and the city governments in which they serve are trustees of constitutional rights for all citizens. Protecting the constitutional rights of all citizens includes protecting the constitutional rights of members of the LGBTQ community and of other gender-nonconforming people.

Free speech rights also extend to those who want to use speech in order to help promote the well-being of LGBTQ people. In ruling that Arkansas law violated the First Amendment, Judge Jay Moody stated that the state law prevents doctors from informing their patients where gender transition treatment may be available and that it effectively bans their ability to speak to patients about these treatments because the physician is not allowed to tell their patient where it is available. For this reason, he held that the law violated the First Amendment.

As additional anti-LGBTQ state laws are challenged in court, judges are likely to continue to use the First Amendment to show how such laws fail to respect Americans fundamental free speech rights.

Mark Satta, Assistant Professor of Philosophy, Wayne State University

This article is republished from The Conversation under a Creative Commons license. Read the original article.

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Anti-LGBTQ laws in the US are getting struck down for limiting free ... - Ohio Capital Journal

When I was asked to write a weekly column by The Jewish Link, I needed to choose a name that would introduce my column. I chose Meet Me in the Middle. I consider myself a centrist who strongly believes in the idea of compromise to help accomplish things.

I also dont like to be boxed in when it comes to political issues. I tend to be socially liberal but fiscally conservative. I admired politicians like Senators Joseph Lieberman and John McCain, who often made independent decisions and sometimes crossed party lines on various issues.

The recent Supreme Court case about whether a wedding website designer had a First Amendment right not to speak posed a difficult question for me as to where I would stand. I found that there were legitimate arguments to be made by both sides. However, after digesting all the facts in the case, I firmly believe that the Supreme Court made the right decision.

The case in question involved a wedding website designer who was approached by a gay couple to create a web page to celebrate their marriage. The website designer refused the job, arguing that she had a First Amendment right not to speakand that the state of Colorado could not force her to design a website that celebrated a same-sex wedding.

Contrary to what many people believe, this case was not about whether a website could refuse gay customers. That would be illegal and immoral. In fact, the website designer, Lorie Smith, said that she would gladly create custom graphics and websites for clients of any sexual orientation and that she was willing to work with all individuals, regardless of their race, creed or sexual orientation.

In deciding this case, the Supreme Court was not saying that it was OK for a business to refuse to do business with gay customers. In fact, in 2020, Supreme Court justice Neil Gorsuch wrote the majority opinion that helped to protect gay individuals from discriminatory employment practices,

What this case was about was compelled speech. Can the government require a business that provides expressive services to say things that the business owner feels are objectionable?

For example, could the government require an artist to paint a picture of Hitler with the words A Great World Leader? Does a speechwriter have to accept a job to write an anti-Jewish diatribe for a right-wing politician?

In my opinion, the answer is a clear and definitive no. The First Amendment is not just about the right to express speech freely; its also about the right not to say things that one does not believe.

Justice Gorsuch said it very well: The opportunity to think for ourselves and to express those thoughts freely is among the most cherished liberties and part of what keeps our Republic strong. And when one does encounter objectionable speech, tolerance, not coercion, is our nations answer.

So why is this not a straight First Amendment case? Why are there folks, including three thoughtful and competent Supreme Court justices, who feel that the government should compel this website designer to accept the job and not be able to refuse to work on First Amendment grounds?

I think it relates to the culture wars (for example, gay rights, abortion, gun control and climate change) that has reared its ugly head in America in recent years. When you support a specific cause, there is a tendency to want to protect your speech as much as possible, while not allowing your opponent to speakor in this case your opponents right not to speak at all.

I remember the famous case in 1977 in Skokie, when a group of Nazis wanted to march in uniform, in a community with several thousand survivors of the Holocaust. The Jewish community was outraged at the thought, and most of its members condemned the planned march loudly. While the event deserved all the condemnation it received, I believe the Nazis still had a constitutional right to speak, as long as they were not inciting violence. But given our communitys desire to protect our own people and our own cause, it was not surprising that much of the Jewish population believed that the Nazis did not have the right to march.

We live in a very polarized country. In certain states, Evangelical Christians would like to censor books and other speech they dislike to protect their children and maintain what they believe is a moral society. At the same time, there are people in other states who would find these opinions discriminatory and hateful. And dont think this is a partisan issue. There are also left-wing advocates who want to ban Dr. Seuss books and other books that are racially insensitive, while conservative advocates criticize their opinions.

If we are honest with ourselves, we should be able to put aside our own personal beliefs when it comes to the First Amendment and agree that the right to speakor not to speakis one that is granted to all Americans, regardless of what they believe.

Justice Gorsuch explained it in this way: In this case, Colorado seeks to force an individual to speak in ways that align with its views but defy her conscience about a matter of major significance.

Thankfully, the Supreme Court recognized that the state does not and should not possess such power.

Michael Feldstein is a contributing editor for the Jewish Link. He owns his own marketing consulting firm, MGF Marketing, and can be reached at [emailprotected]

Originally posted here:
First Amendment Reflections - Jewish Link of New Jersey