Coach Joe fields another loss

Coach Joe Kennedy (Lindsey Wasson/The Seattle Times)

Joe Kennedy, an assistant high school football coach, felt “called by God” to pray immediately after each of his team’s games, directly on the fifty-yard line. Soon, his prayer became a notable community event, garnering players and parents from both teams, and the attraction of local and national news.

After each game was over, “and after the players and coaches from both teams [ ] met to shake hands at midfield,” he proceeded to the fifty yard line of the field, knelt down, and engaged in about thirty seconds of silent prayer. Over the course of the years he coached from 2008 until 2015, more of his own players, as well as coaches, students, and parents, joined him in silent prayer. These then changed into “short motivational speeches” that included sectarian religious language. When Bremerton School District learned of this, they told Kennedy to stop the religious speeches, and that he must separate his religious exercise from the players. Kennedy followed the school’s orders for one game, but then proceeded to the same conduct as before. The coach gave multiple interviews to the news media, and after failed negotiations with the school to find common ground on religious conduct, the coach was placed on paid administrative leave, and his contract was not renewed at the end of the year.

Kennedy sued in 2016, stating that his rights to free exercise were violated by the district’s rules. Both the District Court for the Western District of Washington and the Court of Appeals for the Ninth Circuit agreed with the district, while the Supreme Court declined to hear the case. The case was sent back to the district court, and the Ninth Circuit wrote their second opinion on March 22nd. 

A January 2021 interview with Fox News

Kennedy brought three main claims before the court: free speech, free exercise, and Title I & II claims of unequal treatment. Specifically, he argued that he spoke as a private citizen, and that the district did not have “adequate justification for treating [him] differently than other members of the general public.” Kennedy claims that his speech did not coerce anyone, as it became elective and “opt-in”. To the free exercise claim, he states that the school district did not have a compelling interest to be able to regulate his religious speech. Through television interviews, Kennedy emphasized that a negative ruling here would have adverse effects for all free exercise cases.

The Ninth Circuit ruled in favor of the district. In short, the Circuit said that because he was a coach, he would not have had access to his position on the field otherwise, and thus, “Kennedy’s position encompassed his post-game speeches to students on the field.” Additionally, the fact that he continually communicated his convictions to the news media, the Circuit said, was “a continuation of his on-field demonstrative activities… that were designed to attract publicity.” He’s continued to speak about his case, including writing a Fox News op-ed in January.

Additionally, the district did have a compelling interest in regulating Kennedy’s free speech and exercise, the Circuit said: as held in Good New Club v. Milford Central School, when some state tries to avoid some Establishment Clause violation, that in and of itself can constitute a compelling interest. The possible Establishment Clause violation?  Kennedy’s prayers could have ended up coercing students towards some particular religious persuasion. Further, the speech was not private “in the context of Kennedy’s publicity leading up to it,” because of his choice of publication of the matter.

While I have reservations about part of the reasoning, I agree with the Circuit Court’s ruling in favor of the district. Ultimately, while the prayer indisputably began as a silent, individual exercise of religion, the actual “privacy” did not last throughout. The act of retooling the practice when the number and involvement of students increased inched the practice ever-closer to something that could become unconstitutional. Whether it’s the Supreme Court’s ruling against the reading of non-denominational prayers in Engel v. Vitale, private time set aside for prayer in Wallace v. Jaffree, or the student-led prayer in public schools in Santa Fe Independent School District v. Doe, ultimately, it’s clear that precedent stands against Coach Kennedy. While the free exercise of religion, as guaranteed under the First Amendment, is vital to the foundations of American democracy, Kennedy’s act treaded dangerously close to an unconstitutional establishment of religion, and as such, the school was well within their rights to end his employment. 

The only part of the decision about which I have reservations is the negotiation process of which the district tried to find a solution with Kennedy. Ultimately, I do understand that those sorts of discussions are manifestations of the “least restrictive means” provision common to the strict scrutiny standard. Kennedy found that no sort of prayer was acceptable than on the fifty yard line, immediately after the game. Telling Kennedy that other options, spaces, and times could be made available to him, treads close to government prescription of religious practice. However, the case for the district is compelling enough in other ways (speech, publicity, etc.) that, ultimately, the Circuit ruled correctly in order to ensure the vital separation of church and state.

Chebli v. Kable

    Ahmad Chebli is a Lebanese man from Michigan, father of two children, and has spent his career both as a business owner and an engineer. In 2018, Ahmad was approached by a few FBI agents, and questioned about his political beliefs, religious beliefs, what associations he was a part of, and what he did in Lebanon as a student before he moved back to his home country, the United States. The FBI agents accused Ahmad of being part of a terrorist organization, to which Ahmad immediately denied. The FBI told Ahmad that he needed to work for them due to his suspected terrorist affiliations, and if he did not agree to become an informant then he and his family would be closely monitored and investigated by the government. Ahmad refused to work for them, so as a result he was placed on the No Fly List in December 2018. Because Ahmad has been unable to fly, he cannot travel to see friends, for work, nor can he perform the Hajj pilgrimage: a religious obligation for people of Muslim faith. Ahmad has tried to fight against the FBI and remove himself from the No Fly List, but they have refused to respond or provide any evidence as to why he was even placed on there in the first place. 

    In April 2021, the ACLU filed a lawsuit on behalf of Ahmad because they believed the government had wrongly placed him on the No Fly List. The lawsuit was filed in the federal district court in Washington D.C., as the ACLU stated that this was a violation of many of Ahmad's rights. The ACLU believes that the fact that the FBI took action and placed Ahmad on the No Fly List after he refused to comply with their demands is a violation of his First Amendment rights and the Religious Freedom Restoration Act "RFRA." Ahmad holds sincere Muslim beliefs that he must perform the Hajj, thus the FBI is placing a severe burden on his religious exercise by putting his name on the No Fly List. The ACLU also states that this is a violation of the RFRA, as the FBI cannot place this burden on Ahmad unless they can prove this is the "least restrictive means of furthering a compelling government interest." 

    For many years, the United States government has been placing citizens on the No Fly List that are stigmatized as terrorism suspects. The government gives little reasoning for doing so, and these lists are disproportionately filled with Muslims and those of Arab, Middle Eastern, or South Asian dissent. Recently, the government has been pressuring Muslims more often to become informants for them but a recent Supreme Court ruling may be putting a stop to this. Similar to this case, in Tanzin v. Tanvir, three Muslim men filed a lawsuit under the RFRA after the government placed them on the No Fly List when they refused to become FBI informants. The Supreme Court unanimously ruled in favor of the Muslim men and agreed that listing them on the No Fly List burdened their free exercise of religion in violation of the RFRA. 

    Due to the ruling the Supreme Court made in Tanzin v. Tanvir, I believe the district court should side in favor of Chebli and the ACLU in this case. The exact same scenario happened in Tanzin v. Tanvir as it did in Chebli v. Kable, as in both cases Muslim men were not only put on the No Fly List for refusing to become FBI informants, but they were not given reason as to why they were put on the list. I believe it is a violation of these Muslim men's First Amendment rights in both cases to punish them for their protected-speech. Ahmad chose not to become an informant because he was neither a terrorist nor did he want to turn against his Muslim community. His refusal to be an informant and follow his ethical beliefs should not be punished because is protected under his First Amendment rights. It it also unconstitutional under the RFRA for the FBI to place Ahmad on the No Fly List because it imposes a substantial burden on the right to practice his religious exercise. Ahmad must complete the Hajj pilgrimage overseas, and he is unable to do this due to his name being on the list. I believe that under the RFRA, the government has no compelling interest to burden Ahmad in this way because they have shown no proof that he is a suspected terrorist or that he poses a threat to the nation's security.

    A counter argument one might make to my opinion is that the government has a compelling interest in putting citizens on the No Fly List because the safety of the United States outweighs the religious freedom of a citizen. I do understand that if the FBI had top secret information regarding a citizen in a terrorist organization then they might not be able to directly share that information, but because the FBI has given 0 reason to Ahmad as to why he is on the No Fly List, I do not think one can apply that logic here.

    The ruling in this case is important not only to strengthen the ruling previously made in Tanzin v. Tanvir but it is also important to minority religions. The purpose of the First Amendment is to help protect minorities, and the district court must do so in this case. If Muslim Americans are being targeted and mistreated by the FBI, it is the job of the First Amendment as well as the RFRA to protect their rights. Not only do I believe there could be some unfair religious profiling going on in this case, but also the fact that Ahmad's religious practices are being burdened by the FBI is a clear violation of the First Amendment. The FBI has not shown enough compelling interest in this case to prevent Ahmad from completing the Hajj pilgrimage.

Hunter v. U.S. Department of Education (LGBTQ+ Discrimination at Religiously Affiliated Universities)

Students from Bob Jones University, Liberty University, Baylor University and other federally funded Christian universities have filed a class action lawsuit against the United States Department of Education for unconstitutionally funding institutions with discriminatory policies against members of the LGBTQ+ community. In Hunter v. U.S. Department of Education, the plaintiff, Elizabeth Hunter is a graduate of Bob Jones University who became suicidal after being grilled for, “tweeting, ‘happy Pride,’ and for writing a book with lesbian characters.” Other plaintiffs involved in the case claim the harassment from their institutions caused them shame and depression. Students all over the country have been fined, harassed, and penalized by Christian universities for being part of the LGBTQ+ community.

The plaintiffs argue that government funds being allotted to Christian universities via federal tuition assistance empowers the universities to discriminate against people in the LGBTQ+ community. Religious exemptions are built into Title IX, which prevents gender- or sex-based discrimination in educational institutions that receive public funding. They believe the religious exemption is a violation of the Equal Protection Clause and their due process rights. Additionally, since federal financial aid is paying for the tuition of some students in-need, the government is aiding these religious institutions. The complaint filed by Hunter and the other plaintiffs suggests this violates the Establishment Clause of the First Amendment. Interestingly, the Christian universities involved in the case argue that if the Court sides with the LGBTQ+ students, their First Amendment rights would be violated. The Alliance Defending Freedom argues that, “students who attend religious schools largely do so because they wish to attend schools that share and support their beliefs. If students lose federal aid simply because they decide to attend a religious school, hundreds of thousands of them nationwide would be forced to make a choice: lose their student aid or attend a different school altogether.” One could argue that revoking federal funding from religiously affiliated universities is hostile toward religion and denies students in-need of tuition assistance their free exercise rights. 

In Bob Jones University v. United States, the Court upheld the rights of the IRS to revoke Bob Jones University’s tax-exemption status since the Christian fundamentalist values did not align with the national goals of anti-racism. The Court compared the potential burden of revoking Bob Jones University’s tax exemption to that of the United States if racial discrimination continues to perpetuate. The Court decided the United States has greater interest in abolishing racial discrimination. In United States v. Lee, Old Order Amish Edwin Lee argued that the federal requirement to pay Social Security tax was unconstitutional. Since the Amish faith believes it is a sin to no care for the elderly, Lee believed the required Social Security tax interfered with his religious obligations and therefore violated the free exercise clause. In the majority decision, Justice Burger writes, “While there is a conflict between the Amish faith and the obligations imposed by the social security system, not all burdens on religion are unconstitutional. The state may justify a limitation on religious liberty by showing that it is essential to accomplish an overriding governmental interest.” Both these cases exhibit limitations on the free exercise clause for the benefit of greater society and for the pursuit of national peace. 

This decision is one between the existing burden on the LGBTQ+ students who suffer discrimination at religiously affiliated universities and the potential burden on students at the religious universities who could lose federal financial aid. As I discussed in my last blog post, under ministerial exception, religiously affiliated institutions have the constitutional right to select their ministers as directed by their religious beliefs. However, this does not give any institution the right to harass or torture a minister if his or her identity counters the institution’s religious beliefs. Furthermore, the institution has the constitutional right to admit students with religious beliefs aligned to that of the institution, but they cannot intimidate and harass students for their gender, sex, or sexuality, and they cannot protect students who do. I believe schools have an obligation to protect all students by addressing incidents of discrimination or harassment regardless of the role of religion. As upheld by Bob Jones University v. United States and United States v. Lee, the federal government has the right to revoke fiscal support to an institution that goes against a national interest. Thirty-three plaintiffs share their stories of discrimination at religiously affiliated schools because of their gender, sex, or sexuality. The United States has taken steps in recent years to protect individuals from discrimination based on gender, sex, and sexuality under the Civil Rights Act. The Civil Rights Restoration Act of 1987 requires all federally funded organizations to abide by the Civil Rights Act. Furthermore, the Title IX Religious Exemption perpetuates discrimination abolished by the Civil Rights Act. The government continuing to fund the institution via federal student loans violates the Civil Rights Restoration Act. Because of this, I believe the Court should declare the federal funding an unconstitutional violation of the Establishment Clause and Equal Protection Clause. 

References 

Alliance Defending Freedom. 2021. Christian colleges fight lawsuit designed to strip their students of financial aid. April 12. https://adflegal.org/press-release/christian-colleges-fight-lawsuit-designed-strip-their-students-financial-aid.

Boorstein, Michelle. 2021. Dozens of LGBTQ students at Christian colleges sue the U.S. Education Dept., hoping to pressure Equality Act negotiations. March 30. https://www.washingtonpost.com/religion/christian-colleges-lawsuit-lgbtq-equality-act/2021/03/29/39343620-90af-11eb-9668-89be11273c09_story.html.

Gilreath, Ariel. 2021. Bob Jones University graduate one of dozens of LGBTQ students suing U.S. Department of Education. March 30. https://www.greenvilleonline.com/story/news/education/2021/03/30/bob-jones-university-graduate-lawsuit-us-department-education-lgbtq-students-title-ix/4808380001/.

Kramer, Sarah. 2021. This Lawsuit Threatens the Rights of Faith-Based Schools to Operate According to Their Beliefs. April 12. https://adflegal.org/blog/lawsuit-threatens-rights-faith-based-schools-operate-according-their-beliefs#close.

Payne, Kate. 2021. Two Iowa Students Among Plaintiffs Suing U.S. Department Of Ed Over LGBTQ Discrimination. April 1. https://www.iowapublicradio.org/ipr-news/2021-04-01/two-iowa-students-among-plaintiffs-suing-u-s-department-of-ed-over-lgbtq-discrimination.

Redden, Elizabeth. 2021. Religious Freedom vs. Freedom From Discrimination. April 6. https://www.insidehighered.com/news/2021/04/06/lgbt-students-sue-education-department-over-title-ix-religious-exemption.

Unites States House of Representatives. n.d. Constitutional Amendments and Major Civil Rights Acts of Congress Referenced in Black Americans in Congress. https://history.house.gov/Exhibitions-and-Publications/BAIC/Historical-Data/Constitutional-Amendments-and-Legislation/.

West, Charlotte. 2018. How Title IX Exemptions Allow Religious Colleges to Discriminate Against LGBTQ Students. October 15. https://www.teenvogue.com/story/how-religious-colleges-discriminate-lgbtq-students-title-ix-exemptions.

Eminent Domain & RFRA

    In 2017 land in Lancaster Pennsylvania was seized by the government and given to Transco, a privately owned natural gas company, in order for them to build an 183 mile extension to the Atlantic Sunrise pipeline. While many people in the community had complaints about this seizure of land especially as it wasn’t going towards building a road or something for the general public good and for/by the government the Adorers of the Blood of Christ a womans catholic ministry chose to protest and pursue legal action about this seizure of land. 

    The Adorers of the Blood of Christ have locations in various parts of the world and across the US. As part of their faith they believe that the Earth must be protected due to it being God’s creation. In 2005 the sisters created a land ethic that bid them to recognize the earth as sacred and commit themselves not to harm the earth in their use of their land as part of their Catholic faith. In 2015 the Pope made a similar decree for all those of Catholic faith.The creation of a natural gas pipeline has multiple negative effects on the earth, including of course the fact that natural gas is one of the leading causes of climate change as it is a  fossil fuel. Some of the land seized in Lancaster belonged to the Adorers local congregation. To protest this seizure and to try and prevent the land from being used for the pipeline the Sisters chose to build an outdoor chapel. In addition they also chose to pursue legal action against Transco based on the 1993 Religious Freedom Restoration Act. 

    The Religious Freedom Restoration Act(RFRA) was a bill passed to ensure that interests in religious freedom are protected. For the Adorers their main argument that they are trying to bring to court is that their faith as Christians calls them to ‘protect creation from desecration.' Sister McCann from the leadership council in St Louis explained that the sisters actively practice to reduce dependence on fossil fuels and that “When a violation is done to one part of creation, it hurts all of us.” For the Adorers their argument centers on the fact that by allowing this pipeline to be built, especially on their property, they are having their ability to practice their faith infringed upon. 

    The initial 2017 case was overturned in the 3rd Circuit Court of Appeals but the Adorers have since gone back to court in order to try and have their voices heard. This is not the first time that cases of eminent domain have been challenged on the basis of religious freedom, most notably the desecration of Native American religious sites and burial grounds such as the Dakota Access Pipeline, or Slockish v U.S. Federal Highway Administration. Unfortunately for the Adorers and others who protest eminent domain on the basis of religious freedom there tends to be a poor track record for ruling for minority religious groups.

    

    While I sympathize with the Adorers and their cause I do not think their argument will stand up in court. One of the main reasons for this is because the chapel was built in retaliation to the pipeline’s extension being announced as opposed to an existing chapel being seized by eminent domain. In addition, their belief is rather broad in its design and as opposing counsel has brought up, a nursing home run by the Adorers is powered with natural gas and other of their practices run contrary to this professed belief. These discrepancies can be used to judge the sincerity of their belief. In the initial 2017 ruling Judge Schmeal ruled that the Sisters had not brought up enough evidence that this pipeline violated their religious beliefs and also stated that they had not gone through proper measures to appeal the seizure of their land which is why in part, in 2019 the Supreme Court declined to hear their appeal. The current lawsuit utilizes RFRA in order to seek damages that also intersect with provisions offered by the Natural Gas Act. 

    While the current suit will not overturn the building of the pipeline or restore the land to the Adorers it may bring them some financial compensation with which they can more freely practice their commitment to doing good for the earth and preventing more damages from being done. 

MARRERO-MÉNDEZ V. PESQUERA

     At most staff meetings for any job, the leaders will try to close the meeting with any updates, announcements, or encouraging words.  Can a prayer be included in this list? Officer Marrero-Mendez was a police officer at the Puerto Rico Police Department.  At a meeting with a few other officers, Officer Marrero-Mendez witnessed his supervisor close the meeting with a Christian prayer.  Officer Marrero-Mendez is an atheist and did not feel comfortable participating in the prayer, which he expressed to his supervisor.  His supervisor ordered Marrero-Mendez to step aside but remain in earshot of the prayer.  Officer Marrero-Mendez refused to take part in any of the closing prayers his supervisors did and expressed to them his concerns for closing the meetings with a Christian prayer.  After expressing his concern, his supervisors took his gun away and removed him from his patrol position.  This resulted in him being reassigned to washing department vehicles and doing clerical work after working over ten years at this police department.  Officer Marrero-Mendez’s supervisors argued that their actions were justified because they were entitled to “qualified immunity”.  This is a legal shield that protects government officials, like law enforcement, from being sued if it was not established beforehand that their conduct was unconstitutional.

    This case presents the issue of whether incorporating a closing prayer at the end of the Puerto Rico Police Department meetings violates the Establishment Clause.  William Ramirez, the executive director of the ACLU in Puerto Rico explained that "government agencies cannot require employees to take part in prayer in their workplace. To do so runs afoul of one of the great pillars of both the U.S. Constitution and the Puerto Rico Constitution, which mandate separation of church and state."  The U.S. Court of Appeals for the First Circuit affirmed that the government cannot penalize someone for not participating in a prayer.  This case is unique in the sense that it is dealing with a mandatory prayer in a police department.  However, cases like Engel v. Vitale show us that the Supreme Court believes that a prayer composed by government officials is unconstitutional regardless of whether or not the prayer is optional and denominationally neutral.  Justice Black explained the dangers of having a prayer present within the governmental sphere which is exactly what is happening in this case.  He explained, “whenever government had allied itself with one particular form of religion, the inevitable result had been that it had incurred the hatred, disrespect, and even contempt of those who held contrary beliefs.”  What Justice Black feared would happen is exactly what happened to Officer Marrero-Mendez.  This case is a clear representation of government employees allying themselves with a religion through an authorized prayer at the end of meetings.  Officer Marrero-Mendez believes that the courts should order his supervisors to cease the prayer and the poor treatment he has received for not participating in the prayer.

    In my opinion, I agree with Officer Marrero-Mendez that he should not be penalized for not participating in the closing prayer.  I also believe that a prayer has no place at meetings in a police department.  Even though this prayer is not mandatory, Marrero-Mendez faced severe consequences for not participating as he was demoted from his patrol position.  This clearly violates the Establishment Clause because there are government officials creating and organizing a prayer.  In addition to creating this prayer, those who do not participate run the risk of being demoted.  I believe that Officer Marrero-Mendez should not have been demoted for refusing to participate in the prayer because it is within his free exercise rights to not be forced to pray when you don’t believe in God.  In Justice Black’s opinion in the Engel v. Vitale case, he said “the First Amendment was added to the Constitution to stand as a guarantee that neither the power nor the prestige of the Federal Government would be used to control, support or influence the kinds of prayer the American people can say,”  Using Engel v. Vitale as a precedent, I believe that the Puerto Rico Police Department should remove the prayer from the closing of their meetings.  I also believe that Officer Marrero-Mendez should assume his original position in the police department and not have to worry about losing his position for maintaining his beliefs.

Slockish v. U.S Federal Highway Administration

In 2006 the United States Federal Highway Administration announced a project to widen Highway 26 near Mount Hood, Oregon. The project site was within the vicinity of the Wildwood Recreation Area and would severely damage the traditional campsite and sacred burial grounds of the Yakama Nation. After hearing about the project, the Klickitat and Cascade Tribes of Yakama Nation requested that the government stop the development of the site. Despite negotiations and pleads from the Yakama Nation, the Federal Highway Administration began developing in July 2008. The project bulldozed ancestral burial grounds, destroyed a sacred stone altar, as well as other historic, cultural, and natural resources of religious significance. Additionally, safe access was cut off to the site while the government left the other side of the highway unharmed protecting a tattoo parlor and nearby wetlands.

The Tribes of the Yakama Nation have considered this land sacred for centuries and hereditary chiefs of the Tribes, Wilbur Slockish and Johnny Jackson, as well as a member of the Confederated Tribes of Grande Ronde, Carol Logan, filed the case against the federal government. They claim that actions made by the federal government have violated their First Amendment right to exercise their religion. Plaintiffs claim the government act causes a substantial burden and they cite the Religious Freedom Restoration Act (RFRA) of 1993. RFRA reestablishes the Sherbert test as precedent for First Amendment free exercise protections. RFRA was established as a response to the decision in Employment Division, Department of Human Resources of Oregon v. Smith in order to protect religious minorities and held that courts should use strict scrutiny to examine laws that restrict religious exercise. Despite these efforts, the court has held that the plaintiffs “have not established that they are being coerced to act contrary to their religious beliefs under the threat of sanctions or that a governmental benefit is being conditioned upon conduct that would violate their religious beliefs”. As a result, they have continually been denied claims regarding the violation of their free exercise. This case has been stalled for over a decade and as of February 2021, the Tribe members have appealed to the Ninth Circuit. 

I believe that the courts are being neglectful in their analysis of the burden imposed on the Yakama Nation. The RFRA reestablishes the Sherbert test of Sherbert v. Verner, to acknowledge the importance of over a century of case law and being critical of the laws that may impose significant burdens on individuals, specifically minorities. The RFRA remains constitutional under federal law and asks the court to make use of the Sherbert test. They should evaluate if the actions of the Federal highway administration impose a substantial burden on the religious entity, whether the state has an overriding compelling interest, and lastly if there is a least restrictive means by which the government can still serve the public interest. This case passes the first part of the test, as the Tribe no longer has safe access to the remnants of its ancestral grounds in which they have practiced ceremonies long before the nation was founded. Native American Tribes often cannot separate their beliefs from actions and most importantly separate religious belief and practice from the land they reside and protect. The government knowingly violated this sacred site of the Yakama Nation with gross disregard for the community and its religion. Additionally, the state has failed to present a compelling interest, though most importantly, there is a least restrictive means as the Natives of Mount Hood proposed reasonable alternatives to the construction plans. 

This is another display of how the federal government continues to abuse and violate Native communities. The rulings of the case so far are a display of how endangered religious minorities are if they are not adequately taken into consideration. This is seen in decisions such as Crow v. Gullet in which the court similarly ruled in favor of the state expanding a parking lot in favor of the compelling interest of health, welfare, and safety. The courts consistently undermine the significance of land as a fundamental aspect of Native American religious exercise and consequently continue to violate the free exercise clause of the First Amendment. The decisions of the court, in this case, will continue to impact others as there is currently a similar battle occurring in Arizona, Apache Stronghold v. the United States which will similarly reflect the courts’ protection of sacred Native American sites. The decisions in every one of these cases reflect the level of attention and respect that American Law has for Native people. From the decisions of the lower courts, it is evident that the aforementioned rarely exists and the persistence of cases such as Slockish v. U.S Federal Highway Administration are essential in the fight for religious minorities.

Free Speech & Pregnancy Clinics

The case before the courts today: First Resort Inc., v. Herrera, involves a Medical clinic in San Francisco, Support Circle. Support Circle provides medical care to pregnant women such as ultrasounds, pregnancy tests, counseling and various other services, but does not offer abortions. Support Circle is a “non-profit clinic and counseling center dedicated to providing support for women facing unplanned pregnancies.” Support Circle is a pro-life clinic that believes “that abortion is harmful both to women and their unborn children.” In 2011, San Francisco passed an ordinance that restricts limited service pregnancy centers, such as Support Circle, “from making false or misleading statements about the services they offer.” Support Circle is classified as a “limited service pregnancy center” because it does not provide abortions. In addition, the ordinance also states “that if search engines like Google display their website when the terms ‘San Francisco’ and ‘abortion’ are entered into the search engine together”, Support Circle would be violating the City ordinance. In 2012, Support Circle sued the city of San Francisco, citing their freedom of speech was being violated. Support Circle is arguing that their freedom of speech is being violated because of their belief of abortion. The Ninth Circuit Court of Appeals ruled in favor of the city of San Francisco. Support Circle appealed to the Supreme Court but they denied hearing the case in 2018. 

The central issue before the court concerns a private organizations first amendment right to freedom of speech. Support Circle claims that they are being denied their right to freedom of speech because of their religious and moral beliefs on abortion. Although they do not perform abortions, they want to make sure that women have access to all their options when considering the choices of an unplanned pregnancy. On the other hand, the city of San Francisco argues that this ordinance protects women from clinics that “misleadingly target women in search of abortion services through false advertising-and then employ manipulative and fear-mongering tactics on their visitors to dissuade them from obtaining abortions.” The city attorney for San Francisco stated, “These groups are entitled to be advocates, but they're not entitled to break the law. False and misleading advertising by these clinics is a deceitful practice that preys on women when they least suspect it." 

The Ninth Circuit Court of Appeals argued that the San Francisco law is “facially valid” because the speech being regulated is “unprotected false or misleading commercial speech” which is not protected by the First Amendment. This is quite the slippery slope. In this case, the court is arguing that the speech from Pro-life pregnancy clinics is false or misleading, when in reality, the speech from clinics like Support Circle is tied to their religious and moral beliefs. Do the courts have the right to decide what is or is not the “truth” when it comes to religious beliefs? In Cantwell v. State of Connecticut (1940), the Supreme Court held that the Cantwell’s were allowed to solicit for religious purposes and that by preventing them from doing so, they infringed on their First Amendment. Justice Roberts wrote, “such a censorship of religion as the means of determining its right to survive is a denial of liberty protected by the First Amendment and included in the liberty which is within the protection of the Fourteenth” (Munoz, 28).While this case is a bit different from First Resort v. Herrera, I find that the regulation of solicitation and the regulation of what is or is not “unprotected false or misleading commercial speech” are quite similar. 

    I disagree with the decision of the Ninth Circuit Court of Appeals. I understand the city of San Francisco’s argument about preventing pro-life clinics from “manipulating” pregnant women, however, the law clearly targets pro-life clinics in San Francisco. By claiming to protect a woman’s right to choose, the state of San Francisco is taking away the choice of having access to pro-life options and support like Support Circle, which is making a choice and not letting her choose. On Support Circle’s website, they share their beliefs on abortion as well as options for women considering abortion and their other services, they also state that while they do not prescribe emergency contraceptives or perform abortions, they share information about them both and note that they support a woman’s right to choose. I would be curious to hear how the Supreme Court would rule on this issue. Although they declined to hear the case, they ruled on another case concerning the rights of pro-life pregnancy clinics and the legality of forcing them to advertise abortion options within the state. The Supreme Court ruled in favor of the pregnancy clinic. The restriction of free speech, and the regulation of what does or does not count as “truth,” cannot be seen as constitutional. For this reason, I side with Support Circle.

Freedom From Religion Foundation v. Mercer County

    In Mercer County, West Virginia, there is a program within the elementary and middle schools referred to as Bible in the School (“BITS”). This program was implemented into the County’s curriculum in 1986 and the Mercer County Board of Education administered it. The Board carried out all responsibilities of the program besides funding. The Bluefield Bible Study Fund funded the program by taking care of expenses that the program imposed onto the County. The people targeted by the Plaintiffs, in this case, are Deborah Akers and Rebecca Peery. Deborah Akers is the Superintendent of Mercer County schools and therefore is partly responsible for the BITS program implementation throughout the schools. Rebecca Peery is the principal of Memorial Primary School in Mercer County and is responsible for approving the policies and lessons that come with the BITS program. Between the years of 2012 and 2016, Mercer County resident, Elizabeth Deal, sent her daughter to the Memorial Primary School (run by Peery). Deal did not approve of the Bible in the School program and consequently did not allow her daughter to participate. Unfortunately, this resulted in her daughter feeling excluded from her peers and being, allegedly, harassed. This led to Elizabeth Deal transferring her daughter to a different school that was not sponsoring BITS. 

    The West Virginia District Court had to determine whether or not the BITS program was a violation of the Establishment Clause. Furthermore, there was the question of responsibility and whether Principal Peery was entitled to qualified immunity. To decide the first part, the Court utilized the Lemon Test on the Bible in the School program. In this case, there is no secular purpose present, it is advancing religions that adhere to the Christian Bible, and it is creating entanglement between the County and religion. For all three prongs of the test, the BITS program failed and therefore should not be permitted within Mercer County public schools. In the case of Edwards v. Aguillard, the Supreme Court was faced with determining whether teaching creationism in Louisiana schools was a violation of the Establishment Clause. In this case, the Court used the Lemon Test and found that it failed all three components. The teaching of creationism has a direct link to religious beliefs and therefore it cannot be referred to as secular. The West Virginia District Court concluded that the Bible in Schools program was a violation of the Establishment Clause and therefore enforced the suspension of all BITS classes in Mercer County. 

    This, however, was not the only problem brought forth by the Plaintiffs. In their argument, they placed the responsibility of these programs on Deborah Akers and, more specifically, Rebecca Peery. The West Virginia District Court denied the motion to dismiss filed by Peery but concluded that it is not possible to determine whether Peery is entitled to qualified immunity, but I disagree with this. When looking into cases involving qualified immunity, the Court must see if there was a constitutional violation and if the right violated was established. The implementation of a program, such as the Bible in the School, that advances a particular religion is a clear violation of the Establishment Clause. It was the responsibility of Peery to develop school policies and manage how the students were instructed daily. She was aware of the religious content that accompanied the BITS program and still proceeded to approve of the program and its teachings. In Reynolds v. United States, the Court dealt with a man who, as part of his Mormon faith, participated in polygamy. The Court ruled that Reynolds knew his actions were illegal and yet he still married twice, which they saw as criminal intent. In this case, I would not go as far as to say Principal Peery had criminal intent, but the First Amendment and the Establishment Clause are no secret. As a principal of a school, it is Peery’s responsibility to protect students and their rights. To enforce a religious-based program, such as BITS, Peery promoted Christianity over other religions. This resulted in students, such as Elizabeth Deal’s daughter, feeling ostracized. Therefore, it can be argued that Peery violated the Establishment Clause, which is an established right. 

    Overall, I agree with the Court’s decision that the BITS program violated the Establishment Clause, but I do not believe that there has been enough done beyond the suspension of the program. Individuals, such as Rebecca Peery and Deborah Akers, should be held responsible for the part they played in the implementation of the program. The current state of the case is focused on this directly. Peery motioned for the case to be dismissed, but this was denied by the district court. Now, it must be determined whether Peery is entitled to qualified immunity, to which I would say no. Those involved in this case knew the religious implications of the Bible in the Schools program and this should not go unresolved

Court Ruled in Favor of a Professor Who Cannot Address a Student by Her Proper Pronouns

 In 2016, Shawnee State University announced a ban pertaining to gender identity discriminations, requiring professors and university employees to respect student’s gender identity to show respect and awareness to the transgender population. Professor Nicholas Meriwether saw this requirement troubling since he is a devout Christian who actively “rejects the idea that people can have a different gender identity than the one assigned to them at birth”. Meriwether has been a professor at Shawnee State University in Ohio for 25 years and is a contributing member of the philosophy department. Meriwether brought this to the attention of his department chair as he was concerned about his First Amendment rights regarding his religious faith. Meriwether tried to explain how he cannot comply with the university’s ban to limit gender identity discriminations on the premise that it goes against his religion. 

Meriwether brought his concerns to the federal court that he is being coerced to forcibly reject his religious beliefs when the department chair exhausted a sense of belligerence when stating “adherents to the Christian religion are primarily motivated out of fear” in addition to “the Christian doctrines regarding hell are harmful and should not be taught” insinuating that the teachings of Christianity are dangerous and harmful to the morality of students in higher education. 

The igniting issue took place in January of 2018 when Meriwether addressed a transgender woman in his class as “sir” based on physical appearance. To protect the identity of the student, Doe, confronted Meriwether after class to make him aware of proper pronoun usage that should be used appropriately under school policy. In response to the ban that was set in place Meriwether received a disciplinary warning; moving forward, Meriwether addressed Doe by last name but he still improperly addressed Doe as “sir” on accident. When these accidents occurred more disciplinary warnings were added to Meriwether’s file which could lead to him losing his job with no financial compensation. Meriwether tried to solve the issue by proposing an ultimatum with the circumstances that he will abide by referring to Doe by her proper pronouns if he was permitted to include a section on his syllabus that set forth his religious views. The university concluded that failure to recognize a students proper pronouns even when students are made aware of Meriwether’s religious faith, is in violation of the anti-discriminatory ban and will not be tolerated. The issue at hand questions the constitutionality of the limitations set by Shawnee State University that are infringing against Meriwether’s First Amendment right to freely exercise religion. 

Meriwether’s case reached the United States District Court in 2019 and it was concluded that Shawnee State University was not in violation of Meriwether’s First Amendment rights and failure to comply with university standards does not violate the constitution or protected speech, but rather “ Getting students’ pronouns and titles right is a narrow issue that is part of a professor’s job description, not a matter of free speech”. Unsatisfied with the decision, Meriwether appealed to the U.S Court of Appeals of the Sixth Circuit on March 26. 

The U.S Court of Appeals of the Sixth Circuit unanimously sided with Meriwether under the precedent that if professors were not protected by their First Amendment right to free speech then in a public setting there would be an establishment of religious beliefs, specifically in this case. As previously mentioned, Shawnee State is a public university meaning that they have to abide by the Constitution; on the other hand, private universities can limit speech and religious exercise or establishment. With this in mind, the decision upheld by the Court of Appeals is sufficient based on the public sphere of the university and the restrictions placed on Meriwether’s religious beliefs could impose an unconstitutional establishment on university grounds. 

The Supreme Court case Bob Jones University v. United States (1982) concluded that the IRS was correct by denying them a tax exemption due to the fact that the university promoted racial segregation amongst students. Bob Jones is a private, conservative Christian university who actively believes that segregation between students is a part of their religious belief. The denial of the tax exemption limits religious exercise by advancing religious views that conform to the majority. Since Bob Jones University is a private institution, they should have received a tax exemption. Bob Jones University v. United States in comparison to Meriwether’s case addresses issues of free exercise where the religious minority is supposed to be protected by the tyranny of the democratic majority. 

In addition, Widmar v. Vincent is centered on the issue of free speech concerning religious topics on public grounds at a university. The University of Missouri denied a student group the access to university building’s as their meetings would serve as a place for students to participate in prayer and biblical teachings. The Supreme Court ruled that it was unconstitutional for the University of Missouri to violate the student’s First Amendment rights because the university already opened its facilities as an open forum so they could not discriminate based on religious content. Since the University of Missouri is public and cannot impede on the rights granted by the First Amendment.

 Although Meriwether’s speech addressing proper pronoun usage is not in a traditional open forum, his accommodation by calling Doe by her last name should be accepted by Shawnee State University. In addition the Court of Appeals made the appropriate decision by explaining how they disagreed with how the District Court came to agree that professors are not protected by the First Amendment at anytime in the classroom. Meriwether has the constitutional right to freedom of speech and religious exercise while being employed at Shawnee State University. Meriwether’s constitutional rights permit him to express his religious views on his syllabus and approach the university with the accommodation of calling Doe by her last name. 

Mahoney v. Pelosi

    Less than a week ago today a lawsuit was filed by the Center for American Liberty on behalf of Rev. Patrick Mahoney against speaker Nancy Pelosi and Vice President Kamala Harris. Patrick Mahoney is a 67 year old Presbytarian minister who has made a tradition out of holding a public prayer vigil outside of the U.S Capitol building in Washington D.C on good friday. He even held one of these vigils last year at this time and made accommodations as the pandemic presented safety concerns. However, in light of the events that took place at the Capitol on January 6th, in which violent protesters stormed the building, fencing has been placed around the perimeter of the building and much of the surrounding area has been labelled as ‘restricted’ in order to maintain the safety of the area. Thus, when Mahoney filed for a permit on February 2nd he was denied as the Capitol Hill police department claimed that the area in which he wanted to hold his vigil was part of the restricted zone and needed to remain unoccupied to maintain safety. The police informed Mahoney that he was free to hold the vigil on a sidewalk nearby but he insisted on holding it at the same location he has in the past. The Center for American Liberty is helping Mahoney present his case against Pelosi, Harris, and the Capitol police board as he believes the denial of his request to hold the vigil is a direct violation of his free exercise of religion. Mahoney believes that since there has not been any violent protests or insurrections since the January 6th incident there is no state interest in maintaining the fencing and restricted zones around the Capitol. He also claims that since he has had vigils on good Friday at the Capitol before and has even had them during the Covid-19 pandemic, he has the right to continue to freely exercise his religion in this manner.

This case presents us with an issue of free exercise as the salient point made by Mahoney is that he believes that his free exercise of religion is inhibited by the denial of the space to hold his vigil and that his religious obligation requires this practice. The question becomes whether or not free exercise of religion promises the right of public display on public property and if the Capitol police have reasonable grounds to deny Mahoney his tradition in light of security issues. This case is particularly interesting because of how unique it is, however there are still some precedents that can be related to the Mahoney case in a reasonable manner. Cases like those of Braunfeld v. Brown and O’Lone v. The Estate of Shabazz shows us that when the government has a compelling interest to burden the exercise of religion they are legally allowed to do so in most reasonable instances. The Mahoney case clearly presents a state interest as the main cause of the denial to hold the vigil is due to the security issues present surrounding the Capitol building. On the other hand precedents set like those in the case of Sherbert v. Verner claim that the state must have significant compelling interest to deny a person their right of free exercise when dealing with a key religious principle. Mahoney certainly believes that this recurring vigil is an obligation of his religious belief and the state is lacking compelling interest as violence like the type seen on January 6th has not recurred. 

I personally believe that the state and Capitol Hill police department is correct in denying Mahoney the area to perform his vigil this past good Friday. I understand that Mahoney has held this vigil previously, even during the start of the pandemic, but the state interest in maintaining the security of the Capitol in light of recent events justifies the limit on the free exercise of his religion. The Capitol Hill police also offered Mahoney the ability to perform the vigil on the nearby sidewalk but he refused claiming he needed to be closer to the building in the same spot he has held it in before. The government attempted to accommodate Mahoney as best as possible and the offering of a nearby location is reasonable considering the security interest that the state has. The precedents set in the cases I’ve mentioned previously show that a state interest can limit free exercise and only when a person's strong religious conviction is being inhibited can the state interest occasionally be ignored. Mahoney is not being denied the right to practice the obligation he feels he has to God, he is simply being told it cannot happen in the exact location he wishes due to a compelling state interest. The slippery slope must also be considered because if the state was to make this exception for Mahoney there is a possibility that other religious groups could attempt to hold events on ‘restricted’ grounds and pose a real security threat. I believe the free exercise of Mahoney was rightly limited in this situation as the state interest in maintaining the security of the Capitol, along with the minor limitation on his free exercise, the possibility of a slippery slope, and the precedents set before all culminate in justifying the limitation he was subjected to last Friday.

St. James Catholic School v. Biel

St. James Catholic School was founded in 1918 with the goals of combining academic excellence with religious influence and teachings. Ms. Biel was a fifth grade teacher, the only one at the time at this school, at St. James and held various responsibilities that exceeded that of a normal teacher. She was responsible for teaching religion classes on Catholicism each week, leading students in prayer, bringing the students to Mass, and creating a curriculum that infuses the Catholic faith within it. However, Ms. Biel’s classes performance fell below the school’s standards and after giving her some months to improve, which it did not, they decided to not renew her contract and let her go. After her firing, Ms. Biel made the decision to sue St. James school but lost her case in the district courts. From her she appealed her case and won in the circuit courts due to the court’s reasoning that St. James does not hold the rights as a church when it comes to choosing who teachers their faith. This led to Becket, a non-profit public interest law firm that looks to protect the freedom of religion of all people, filing a petition for review of this case to the Supreme Court. 

In this case, the district court’s ruling may be a potential violation of one of the clauses of St. James’ First Amendment rights. The Free Exercise Clause protects citizens' right to practice their religion as they please, so long as the practice does not run afoul of a public morals or a compelling governmental interest. Here, one must ask the question if St. James retains the right to fire their religious personnel with the same freedom as a church. To look at this case correctly, one must first understand the stipulations for this free exercise that was granted by the case Hosanna-TaborEvangelical Lutheran School v. EEOC. In this case, the question of, “can the government force a church to retain a minister who violates church teachings?”, was answered. The Lutheran Church and School had fired one Cheryl Perich, a commissioned minister and teacher, for insubordination and disorderly conduct, all violations of church teachings. Perich decided to sue and the church argued that forcing them to keep Perich on their staff against their will was an unconstitutional restriction on their rights to choose their own leader. This concept comes from what was mentioned before as a Ministerial Exception. Ministerial Exception prohibits legal claims against church bodies by their employees who carry out religious duties. This is to prevent the government from interfering with church practices and inadvertently choosing a church’s religious leaders. Within this case, Perich argued that the ministerial exception should not apply and that religious personnel should retain the right to sue those who employ them. However, it was thus stated that this was a constitutionally protected right and prevents excessive entanglement between church and state. Furthermore, the court expanded on the broad term of what is considered a “minister”. It was stated by Justice Samuel Alito that a minister is, “any employee who leads a religious organization, conducts worship services or important religious ceremonies or rituals, or serves as a messenger or teacher of its faith.” The Supreme Court then ruled unanimously for Hosanna-Tabor with the belief that religious groups should be free from government interference when they choose their leaders.   

The Supreme Court ruled in favor of St James Catholic School and stated that the government cannot control the school's decision about who teaches its religion classes. I agree with the court’s holding on this case. A minister holds a position in which their job is deeply involved with passing on the teachings of their faith. The government should not be able to decide who the religious leaders are of the church because that can lead to the government essentially running the church by keeping leaders within the church that fit the government’s agendas. This slippery slope can lead to an establishment violation as this could enact state sponsored religious leaders within the church which would be an establishment of a state religion basically. Furthermore, I agree with the court’s broadening of the term “minister” within the case Hosanna-Tabor Evangelical School v. EEOC. This protects the parish schools from being forced to retain employees who aren’t ordained fully but still pass on the teachings of the faith. Thus protecting religious institutions rights to dictate who educates others on their religion. If a teacher holds responsibilities of teaching the faith in any capacity, then they should fall under the umbrella term of a minister within this context.