What constitutes as Government Speech?

http://www.nationalreview.com/bench-memos/415819/first-amendment-scotus-case-could-bring-much-needed-clarification-what

Recently the Sons of Confederate Veterans, tried to display Confederate battle flags on their specialty license plates. The state of Texas excluded this particular design from its specialty-plate program. The Confederate flag style plate was excluded from the program because it violated their policy against “offensive” messages on specialty plates. The states that allow these specialty license plates are permitting private organizations to create special plates that vehicle owner’s purchase for their car. In most cases a portion of the proceeds goes to the private company that sponsors the plates. Walker v. Texas Division, Sons of Confederate Veterans, gives the Supreme Court the opportunity to clarify whether the First Amendment is applied when state and private actors work together to produce speech. The Court also has a chance to elaborate on what qualifies as “government speech” which is not subject to the First Amendment at all. Lower Courts have had trouble discerning whether states are presenting and supporting government messages through their involvement in the specialty-plate programs. Or, could these states simply be promoting private messages and views of citizens in their state? This confederate flag case is a bit out of character for license plate disputes across the U.S. Mainly, these cases consist of national discussion of abortion-related speech and the national use of the “Choose Life” License plate, which is available in 29 states.

           

I believe it goes against the Sons of the Confederate Veterans First Amendment right of freedom of speech to not allow them the specialty-license plate exemption. These specialty plate programs are only designed to create revenue for the state and the organizations creating them. It is up to the individual how they would like to express themselves in their own car or truck. Walker v. Texas Division, Sons of Confederate Veterans and the license plate programs create a newfound public forum in my opinion and therefore must be protected by the First Amendment. The state and the organizations involved in the specialty plate programs must judge all requests for specialty-plates with neutrality and decide accordingly. In my opinion, this is not “government speech” just because it is a state license plate. This is just a glorified bumper sticker that people can so choose to have. By having the specialty-plate option, the state is inviting the public to join in a public forum of expression and allowing the plates to say what the public wants. This could open a slippery slope because the state of Texas would be required to allow plates that may bear a swastika or other “offensive” signs. The states that do allow specialty plates should either judge all requests for license plate alterations neutrally or not allow any difference in appearance and require complete uniformity of the license plates. This issue is important because it speaks to a new and up and coming public forum that is beginning to come about. The Court has made rulings in the past regarding the treatment of license plates as private property. Historically in Wooley v. Maryland the court ruled that motorists could not be compelled to carry the New Hampshire motto “Live Free or Die.” This case may set a new precedence in how license plate space is treated in the future and to what lengths the First Amendment will stretch to cover expression. The distinction that must be made here is whether you view the license plate as the driver’s speech or as the states.

Where do you stand?

Religious Chaplains in NCAA Basketball

Article: http://www.theglobaldispatch.com/freedom-from-religion-group-targets-ncaa-basketball-teams-for-having-chaplain-82735/

            Recently, the Freedom from Religion Foundation threatened to file lawsuits on a handful of public universities that have religious chaplains assigned to sports teams.  The list of schools includes some big names like Louisville, Wichita State, Kansas, Maryland, Oklahoma and Virginia.  Some schools openly fund a team chaplain while other universities use techniques to avoid suspicion of religious establishment.  Some schools try to give more secular meanings to these job titles.  For example, Virginia has a coach listed as the “Director of Player Development” who spoke later at Liberty University on the importance of people finding themselves through Jesus rather than perseverance and hard work.  In addition, Oklahoma has Scott Thompson listed as a Character Coach.  At first glance, this title might appear to mean a coach devoted to keeping team spirit high.  However, character coaches are associated with the religious organization  “Nations of Coaches” which has bible verses on its website and a whistle with a cross as its logo.  Wichita State also has a coach associated with the Nations of Coaches organization.  The head coach of the Louisville basketball team named his friend, who happens to be a priest, the team’s unofficial chaplain.  Kansas University has a chaplain who retired from the NBA to change the lives of athletes “with the message of Jesus Christ”.  The University of Maryland also openly employs a pastor as their chaplain.  He happens to be associated with the Nations of Coaches, too.

            In Virginia’s case, I believe the Freedom of Religion Foundation would need more evidence to support their case for an Establishment violation here.  Accusing the school of using a misleading job title to portray secular purposes might be true.  However, saying the coach spoke at another university on his belief of Jesus is not enough evidence to support any violation here.  I believe they must find inconclusive proof, such as forced team prayers, to have a case for an establishment violation here.  In addition, if the coach has all the necessary credentials, like the Kansas chaplain that quit the NBA, it would be even harder to prove any violation.  There is no law against hiring a coach with the necessary credentials and allowing him to speak his mind on religion matters.  However, Kansas listed this man as a chaplain. Therefore, I believe the Freedom from Religion Foundation would have a case here for an establishment violation because it is for the purpose of further aiding religion.  I believe they also have a case for a violation by Oklahoma as well as Wichita State, who both chose to use more secular job titles like Virginia did.  The reason these are better cases for establishment is because these coaches are listed as Character Coaches.  Although this title might seem facially secular, it is directly linked to the religious organization Nations of Coaches.  Therefore, the public university’s funds, which come from the hard work of people from all different religious and nonreligious backgrounds, shouldn’t cover the salaries for these coaches.  This is why the Freedom from Religion Foundation would also have a great case for an establishment violation against the University of Maryland.  Here is a case of a publicly funded university openly paying a pastor as their chaplain who happens to be associated with the Nations of Coaches, as well.  Finally, I do not think the Freedom of Religion Foundation would have a great case against Louisville.  Although he is a priest, it is unofficial because the school does not pay him.  I believe it is fine to have an unofficial team chaplain if some of the players and coaches enjoy having one to go to when they feel the need.  However, like I said about the Virginia case, any evidence of forced prayer or similar activity could bring lawsuits for violations of the Establishment and Free Exercise Clauses, whether this particular chaplain is officially connected to/paid by the school or not.  Any coach hired by a school must be there for the secular purpose of coaching basketball.

Religious Opinion Shot Down in Yet Another University

This example of establishment issues in public schools comes to us from May of last year, so the case is a little bit dated, but I still feel it poses some controversy worth talking about.  Daniel Harper is a student at Cameron University in Lawton, Oklahoma who was disciplined by the university for distributing fliers that were religious in nature.  In an article by WorldNet Daily (usually just referred to as WND) describing the situation, Harper's fliers consisted of expressions of his opinion stating that a group called World Mission Society "was a pyramid scheme 'fronting as a religious organization' and distorted the Bibles teachings."  Another student of Cameron University--who remains unnamed--was offended by the viewpoint that Harper's fliers presented, and made a complaint to the university.  After hearing of this complaint, the university then began its disciplinary procedures on Harper and his actions.

What is interesting is that Harper was actually found in violation of the Equal Opportunity Policy, which is outlined in the university's Employee Handbook.  There have been obvious complaints about this, since Harper is a student and not an employee.  In addition to this rationale, the university officials also told Harper that he could not distribute the fliers because "other students found them offensive and he didn’t receive prior approval."

However, the most surprising rationale that Harper received from the university came from an Equal Opportunity Officer named Thomas R. Russell, who told Harper that the policies of the university are above "those amendments to the Constitution," and that the rights outlined by the First Amendment are merely "foundations," and that the university's policies serve to build off of them, but not necessarily to abide by them.

Harper filed suit against Cameron University with the help of the Alliance Defending Freedom (ADF).  Senior Legal Counsel for ADF, David Hacker, argued that public universities are supposed to be an open place where students are free to express their ideas, and that the "First Amendment protects freedom of speech for all students, regardless of their religious beliefs."  The ADF has also pointed out that the university allows various other groups and individuals to express their views on campus.  Another ADF Senior Counsel member, Kevin Theriot, also made the statement that the university officials "don’t get to pick and choose which theological viewpoints can be expressed on campus."  Both ADF and others who have expressed complaints over this case hope that Cameron University will revise its Expressive Activity Policy and its Equal Opportunity Policy to truly parallel the amendments of the Constitution.

This case sounds similar to one of the cases we have discussed in class, Rosenberger v. University of Virginia.  Student Ronald W. Rosenberger's case was somewhat different in that he was asking the university to provide the funding for the publication "Wide Awake," which contained a religious viewpoint.  As we know, the Supreme Court ruled in favor of Rosenberger, claiming that the university's denial of funding constituted viewpoint discrimination, which violated the Free Exercise Clause of the Constitution.  The situation is the same here: Cameron University is using viewpoint discrimination against Daniel Harper's fliers, which is unconstitutional.

I would definitely say that Harper's free exercise rights were violated here.  I was also appalled at the fact that Russell blatantly stated that the university's policies went above the amendments of the Constitution.  That is obviously not right.  So what do you guys think? Should Daniel Harper be allowed to distribute his fliers even though they may be offensive? Or should Cameron University's policies be upheld and kept as they are?

Objections to Abortions for Child Refugees

In recent months, the Obama Administration has issued a new rule to takes effect June 24 that would force pro-life Christian organizations to provide abortions to child refugees entering the US without their parents. If the organizations fail to perform the abortion or notify the government to make the arrangements themselves, then the group is no longer eligible for federal aid.

The groups whom are pro life have avidly fought this rule and claim that they will not take these measures as supporting abortions would be a fundamental undermining their faith. By refusing to comply, many of the organizations will loose their funding and subsequently “diminish their potential to serve vulnerable, innocent children who come to this country with great needs” (http://liveactionnews.org/breaking-obama-admin-tries-to-force-christian-organizations-to-participate-in-abortions/). Six out of nine refugee resettlement organizations are faith based and thus they claim that the majority of these organizations will loose their funding as they refuse to refer the abortions.  Before these rules were enacted, if a child who came to them was pregnant they would provide health care access but in a manner that was “consistent with their religious beliefs”.

The Obama administration claims that they have in fact attempted to accommodate faith based groups as they allow the faith-based organizations whom are opposed to abortions to partner with other organizations or simply refer the child to the federal government. Thus, the organizations do not actually participate in the abortions but simply outsource the child to a third party.

The faith based organizations claim that this violates the Religious Freedom Restorations Act of 1993 which states that US federal law can not “substantially burden” a person’s free exercise of religion. Is the Obama administration denying funding to faith-based groups and to favor groups that coincide with their own ideology?

In my opinion, the Obama Administration is not substantially burdening the organizations free exercise of religion. Groups that provide care for refugees should do so regardless of whether they have to relay someone to a third party or not, even if it is against their religious belief. They do not have to provide the abortion themselves, and to claim that it will “diminish their potential to serve vulnerable, innocent children” shows that these organizations are not devoted to their mission of helping the children. I would think that their religion would tell them to continue helping the children regardless of whether they had to be referred to have an abortion or not.

Another point that I found interesting that the pro-life organizations failed to bring up was about what the children wanted. Although they are typically under aged individuals, people who are victims of sexual assault have the right to choose for themself whether they would like an abortion or not regardless if their parents are no longer with them. Often, as refugees, these organizations are the only option that the children have. To not allow them even the option to have an abortion because of the organization’s religious views does not seem right to me. Instead, if the child thinks that they should have an abortion it is in their every right to have one.

A last contentious part of the rules was that the organization’s also had to begin to recognize people on the gender of their choosing and to train their staff in the complexity of LGBTQI.  This subscribes to the belief that gender is not a physical or biological trait and instead an emotional one that it chosen by each individual.  The organizations again are claiming that these rules do not protect the organizations moral objections.

This is a practice is one that is completely understandable for the Obama Administration to support. Determining gender by the rules of LGBTQI has become accepted by society and now should be accepted by the organizations regardless of their religious objections. Again, some of these organizations are the only option for child refugees, and to not identify them in the manner that they deem acceptable would be a violation of that individual’s fundamental rights.  

(Photos taken from Catholic Relief Services- an organization providing help to child refugees)

Videographer Latest to Deny Service for Same-Sex Wedding Ceremony

Yet another privately owned small business has been put under the national spotlight after refusing to provide services to a same sex couples wedding ceremony.  Just one of many cases that have frequented the news and court system recently, however there seems to be a greater precedent being set forth regarding cases like these.

In this case, a company called Next Door Stories in Ohio, whose job is to film big moments in people’s lives for them, namely weddings, has denied its services to a lesbian couple. The couple contacted the company and came across employee Courtney Schmackers. Over email, Schmackers responded to their request for her to record the ceremony by replying “Unfortunately at this time I do not offer services for same-sex weddings.” The couple then aired their grievances over social media, and it since has been picked up my major media outlets such as CNN. The couple claim to be very upset by being denied service, as Moffit told CNN, “I couldn't believe it. It is a small business, and I thought this was a tight-knit community. We wanted to support local commerce, and to get that kind of response was astounding.

Courtney Schmackers 

Recently, cases similar to this have been ruling against the small business, generally forcing reparations through fines. A florist in Washington state, a baker in Oregon and a photographer in New Mexico all lost their cases under religious claims that aiding a wedding ceremony for same sex couples was to them inherently wrong, and against their religious beliefs and principles. The precedent set forth in the Jack v Philips case basically gave the court the right to trump the business owners ability to operate his/her business in accordance to their religious practices due to a compelling state interest. Even though in his view, baking a cake for a same sex marriage would in his mind be a direct violation of what he claimed to be a core part of his religion, and that by the government forcing him to bake a cake for a ceremony such as this was essentially restricting his religious liberties. The court however ruled against the man. I think that if you applied that same precedent here, Next Door Stories would most certainly be forced to pay fines to the couple, and would lose the case as it is the same sort of denial of service.

Even though the courts have been ruling in favor of same sex couples and against denial of service based on religious beliefs as of late, people are still very unsure as to what the outcome of this case might be.  Grant Stancliffe, who is advocate for LGBT couples said, “This is one of those situations that shows how bizarre it is that Ohio as a state doesn’t have a statewide anti-discrimination law that covers gay and transgender people.”  So even though there are are certain municipalities that have ordinances against same sex discrimination for businesses, the town of Bexley is apparently not one of them, so technically by Ohio state law and the rules set forth by the chamber of commerce and the City of Bexley, Schmackers had every right to deny the couple service based on their sexual orientation.

Jenn Moffitt and Jerra Kincely 

In my opinion, I think that the precedent set forth in the Philips case is dangerous, and can be have the effect of limiting certain individual’s rights and abilities to practice their religion, and be able to conduct their business as they see fit. My problem is that these businesses have all been small and privately owned, and I believe they have the right to deny a certain service if it is in direct contradiction with their own personal beliefs. If they believe that this action is essentially equivalent to committing a sin, it is not the place of the government to tell them that they have to temporarily part from their religious beliefs to accommodate a couple who could easily find another business that would be willing to help them. I don’t believe that they should have complete and total ability to deny service in every circumstance. For example denying a member of the LGBT community general service for certain things is blatant discrimination which cant really be backed up by legitimate religious beliefs, but the fact that it is a wedding, and that this is a ceremony that many people in our country find “unholy” and “in direct opposition with their religious beliefs” is what in my mind justifies a business’s ability to deny service in this instance. I would argue that providing businesses with this ability is would not necessarily be wielded as a sword, but more of a shield to protect against the governments intrusive tendencies into religious freedoms and commerce. Also many of these cases have resulted in these businesses being boycotted, which has in turn forced them to go out of business, which is a practice I fully endorse. In the capitalist system in which we are operating I think it is up to the consumer to recognize when a company or business has certain discriminatory practices, and that they have the ability to stop being a customer if they detest their actions. Once again I am not saying that businesses should have the right to deny service to whomever they wish, but I think in cases that come into direct contradiction with their religion, they shouldn’t be forced to subdue their religious duties.

http://www.advocate.com/politics/marriage-equality/2015/03/20/videographer-refuses-film-ohio-same-sex-wedding

http://www.westernjournalism.com/lesbian-couple-accuses-wedding-videographer-discrimination/

Indiana Passes Religious Freedom Bill

           Indiana recently passed what is being referred to as a “religious freedom bill”. This bill ensures business organization owners that they will not have to go against their religious beliefs in order to help certain customers, such as the cake store owner who refused to bake a wedding cake for a homosexual couple. A more recent case such as this came about recently involving a videography business that refused to film a wedding for a same-sex couple. Are these business owners required by law to provide their services if it means going against their religious beliefs? This bill says no, they do not have to because their religious rights are protected.

            The main issue with the bill passing is that many believe it will simply be used as a means to justify discrimination against homosexual individuals and couples. Those who are in favor of passing the bill deny this claim, but during a time when so many cases similar to the ones listed above have occurred, and as the Sup

reme Court is getting closer to legalizing same-sex marriage, it seems questionable what the true intent is. This raises the issue of whether private companies should be legally allowed to discriminate against potential customers based on his or her own religious beliefs.

            I think the bill is constitutional seeing as it is facially neutral and does not directly target any specific group of people. However, I think upon further inspection and once the bill is in action, it is extremely discriminatory in nature. Business owners should be able to look beyond their own beliefs because they are offering goods to the public and should not be able to pick and choose their customers. However, this bill would legally allow them to do so. Some would argue that because it is a private company that the owners should be allowed to choose who they provide services for, especially in situations where the customers could find another company to bake a cake or film a wedding. I think this should not be the case because business owners should not be legally allowed to discriminate.

            With this bill becoming a law, there will without a doubt be higher numbers of the LGBTQ community, as well as others, being turned away for services. My main issue with this bill is that it has no boundaries, meaning anyone could be discriminated against with the owner claiming that helping them would go against their beliefs, regardless of whether or not that is actually true. This could even end up extending to a surgeon who does not want to perform surgery on someone because of his or her religious beliefs. This highlights a life or death situation, but this bill would make it legal for said surgeon to turn the patient away, and I do not think this should be allowed.

            It is true that business owners have their own religious beliefs, but I think by starting a business and offering one’s services to the public you then somewhat put aside your personal beliefs to have a successful company. Although this bill protects business owner’s religious rights, it consequently takes away the rights of those who will be discriminated against. America’s roots are in protecting the minority and ensuring that everyone has equal rights, and I think by passing this bill it is hindering a large population of people who have already been targeted for quite some time.  Although facially neutral, this bill is legalizing any and all discrimination, and it will lead to a slippery slope of private business owners stretching the bill as far as it can go to deny services to anyone they choose. The bill should not be passed.

            What do you think? Do the religious rights of business owners outweigh the rights of customers to not be discriminated against? Should the bill become law?