Cultural Issues in the Courts: January 2018 Update

Courthouse with the year 2018 overlayed

January 9, 2018

Latest developments in the Oregon baker case, plus abortion-related speech and state laws are all subjects of this issue of the Executive Briefing Judicial Update.

Freedom of Religion and Speech – Oregon

In a case very similar to the pending U.S. Supreme Court case (Masterpiece Cakeshop) involving Denver baker Jack Phillips, Oregon bakers Aaron and Melissa Klein are disappointed by the Oregon Court of Appeals’ ruling that their religious freedom and free speech rights were not infringed when the state fined them $135,000 for declining, on religious grounds, to create a custom wedding cake for two lesbians in 2013. The couple eventually closed their bakery due to financial problems caused by the controversy. An appeal is expected, and the outcome of the Kleins’ case could well hinge on the anticipated Supreme Court decision in Masterpiece Cakeshop due in the next few months.

Freedom of Speech, Abortion – California

A California state judge declares a recently passed pro-abortion state law there unconstitutional under the California constitution. The Reproductive FACT Act, signed into law in 2014, forces pro-life pregnancy resource centers (whose mission is to provide pregnant women with alternatives to abortion) to advertise and promote the availability of nearby abortion facilities. The judge stated: “The statute compels the clinic to speak words with which it profoundly disagrees when the state has numerous alternative methods of publishing its message.” HOWEVER, in a different California case involving the same law but argued in the federal courts under the federal Constitution, the 9th U.S. Circuit Court of Appeals upheld the FACT Act, a decision that is now before the U.S. Supreme Court and will be argued this spring.

Freedom of Speech, Abortion – Maryland

A federal appeals court unanimously strikes down a Baltimore ordinance requiring pro-life pregnancy resource centers there to post messages specifying that they do not provide abortions or refer patients to it. The Court noted: “the ordinance forces the center to utter, in its own waiting room, words at odds with its foundational beliefs and with the principles of those who have given their working lives to it.”

Freedom of Speech, Abortion – New Jersey

A federal district court strikes down a city’s attempt to limit sidewalk counseling at abortion clinics through the use of an ordinance restricting speech at all “healthcare facilities,” declaring it overbroad and unconstitutional. Based on the U.S. Supreme Court’s unanimous 2014 opinion in McCullen v. Coakley, the judge held that the local ordinance was not “narrowly tailored” to deal with the issues of public safety at abortion facilities, and prohibited far too much protected speech.

Freedom of Speech, Abortion – Pennsylvania

In a decision contrary to the one reached in the New Jersey case, a Pittsburgh, Penn., “buffer zone” law is upheld by a federal district judge there. Since both New Jersey and Pennsylvania are located within the 3rd U.S. Circuit Court of Appeals, it is very likely that the Court of Appeals will have to decide which lower court got it right.

Abortion Regulation – Texas

Texas’ attempt to ban dismemberment abortions hits a roadblock in the form of a federal district court judge who strikes it down as unconstitutional, saying it put an undue burden on a woman’s “right” to an abortion. Texas has already appealed the decision to the 5th U.S. Circuit Court of Appeals.


Compiled by Bruce Hausknecht, J.D.  A lawyer and former pastor, Bruce joined Focus in 2004 as an analyst and spokesman for the ministry on public policy matters. 
© 2018 Focus on the Family.