Cultural Issues in the Courts: August 2018 Update

Courthouse with the year 2018 overlayed

Executive Briefing: Judicial Update ―August 3, 2018

Free speech and religious freedom for bakers, graphic design artists, pregnancy care centers and school boards, plus student bodily privacy, are all subjects of this issue of the Executive Briefing Judicial Update.

Freedom of Religion – U.S. Supreme Court

In the much anticipated decision of Masterpiece Cakeshop v. Colorado Civil Rights Commission, the U.S. Supreme Court held by a vote of 7-2 that Denver baker Jack Phillips’s religious freedom rights under the First Amendment were violated by a hostile Colorado state commission that heard the discrimination case against him. The majority opinion also relied on the fact that the commission treated Jack’s case differently than other bakery-related cases it heard around the same time.

Freedom of Religion – Arizona

Only days after the U.S Supreme Court decision in Masterpiece Cakeshop, the Arizona Court of Appeals decided that two Christian graphic design artists in Phoenix, Arizona, must use their creative and expressive talents to create wedding invitations and other related art for same-sex ceremonies or risk being fined under a Phoenix ordinance prohibiting businesses from discriminating on the basis of sexual orientation. The Arizona court’s opinion discussed the Masterpiece Cakeshop decision but, shockingly used it against the two female owners of the graphic design business. The decision is being appealed to the Arizona Supreme Court.

Freedom of Speech – U.S. Supreme Court

Government cannot force you to speak a message with which you disagree, the U.S. Supreme Court decided in NIFLA v. Becerra. A California statute which compelled pro-life pregnancy care centers to advertise and promote the availability of free- and low-cost state-subsidized abortion violated the Free Speech Clause of the First Amendment.

Freedom of Religion – California

Invocations at public school board meetings are not the same as constitutionally permissible “legislative prayers” due to the involuntary presence of students, and are therefore not permitted by the First Amendment, the 9th Circuit Court of Appeals has ruled. Three other circuits have also addressed this issue, with only one holding such prayers are permissible in a case where students were not present. No word yet whether the school board will appeal to the U.S. Supreme Court.

Student Bodily Privacy – Virginia, Pennsylvania, Oregon

Three federal courts have ruled recently on the subject of high school transgender bathroom issues. In cases from Pennsylvania and Oregon, school policies allowing students to use the bathrooms and locker rooms consistent with their “gender identity” were upheld against privacy challenges by objecting parents and students. In a Virginia case where the high school denied a request from a gender-confused female to use the boys’ restroom facilities, a federal court ruled that Title IX, the federal non-discrimination law applicable to sex discrimination in public schools, also applies to transgender students. The Virginia and Pennsylvania cases will be appealed, and it is likely the Oregon ruling will be also.