Cultural Issues in the Courts: July 2017 Update

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July 19, 2017

Freedoms of religion and speech at the U.S. Supreme Court; conscience rights concerning marriage and abortion; a cross on public land; and invocations at government meetings, are all subjects of this issue of the Executive Briefing Judicial Update.

Religious Freedom Victory, Church Playgrounds — U.S. Supreme Court

In an important 7-2 decision, the U.S. Supreme Court holds that a state violates the First Amendment’s Religion Clauses when it denies the benefits of a generally available state program to a church — simply because it is a church. The State of Missouri ran a grant program that reimbursed nonprofit organizations for the cost of installing rubberized playground surfaces made from recycled tires. Trinity Lutheran Church, which runs a preschool daycare program that includes a playground, applied for the grant and was initially approved for it; however, it was later told that Missouri’s constitution prevented the state from sending any state funds — like the grant — to a church. Such a denial, wrote Chief Justice John Roberts, is “odious to our Constitution.”

Free Speech Victory, Trademarks —U.S. Supreme Court

In a unanimous decision that will have an impact on future free-speech cases, the Supreme Court decides that a trademark that could be deemed “offensive” is still speech that is protected by the First Amendment. A government prohibition of offensive speech, in Justice Alito’s words, “offends a bedrock First Amendment principle: Speech may not be banned on the ground that it expresses ideas that offend.”

Religious Freedom, Marriage, Gender Identity — Mississippi

A federal appeals court rejects an effort by LGBT activists to block Mississippi’s “Protecting Freedom of Conscience From Government Discrimination Act” from going into effect. The 2016 law, passed in response to the Supreme Court’s 2015 same-sex marriage decision, was designed to prevent wedding vendors, county clerks, religious organizations, and others from being punished or harassed by the state or local government, because they refuse to violate their religious conscience with regard to same-sex marriage, transgenderism, or sex outside of marriage. The federal court said the plaintiffs could not show any actual “injury” from the law, so they lacked the legal ability to sue to have it overturned.

Religious Freedom, Marriage — North Carolina

In a case somewhat similar to the Mississippi case discussed previously, the 4th U.S. Circuit Court of Appeals rejects a challenge to a North Carolina conscience law allowing magistrates who perform weddings to opt-out of same-sex weddings. The court rules that the same-sex couples bringing the suit could not object to the law based merely on their status as taxpayers; they must show actual injury.

Free Speech, Abortion —California

A California law now requires pro-life pregnancy resource centers to promote free and low-cost abortion availability.  Challenged as an unconstitutional example of government-coerced speech, the 9th U.S. Circuit Court of Appeals rejects both free-speech and religious freedom claims brought against the law, calling it a “neutral law of general applicability.” An appeal to the U.S. Supreme Court is likely.

Religious Freedom, Crosses on Public Land — Florida

A federal judge in Florida reluctantly orders a 34-foot-tall Christian cross, located in a city park for the past 75 years, be removed because it violates the Establishment Clause of the First Amendment, in a challenge brought by a secular organization. Although the judge cited the Founders’ support for public expressions of religion, he said he was nevertheless bound by higher court precedent and required to order the cross’ removal.

Religious Freedom, Prayer at Government Meetings — North Carolina

A federal appeals court strikes down a prayer invocation practice at meetings of a North Carolina county board of commissioners, at which only the elected commissioners prayed (not pastors or community residents), they prayed only Christians prayers (some of which proselytized for the Christian faith), and it had continued for years, creating the appearance of a government endorsement of the Christian faith.  Although in 2014, the U.S. Supreme Court affirmed the practice of legislative prayer in Town of Greece v. Galloway , the appeals court said the facts of this North Carolina county’s invocations are different enough to justify striking them down.