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U.S. Federal Courts

High Court to hear case of school prayer but not anti-LGBTQ web designer

The Justices added five new cases including the case of a fired former Bremerton, Washington assistant high school football coach

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The Justices of the United States Supreme Court (Photo Credit: U.S. Supreme Court)

WASHINGTON – After their private conference on Friday, the Justices of the U.S. Supreme Court added five new cases to this term including the case of a former Bremerton, Washington assistant high school football coach removed for refusing to halt his practice of praying at mid-field after games.

The court however declined to hear the case of a website designer who refused to create custom sites for same-sex weddings.

SCOTUSblog senior reporter Amy Howe reportedthe case of the football coach involves Joseph Kennedy, a practicing Christian whose religious beliefs require him to “give thanks through prayer, at the end of each game.” When he began his job as an assistant coach at Bremerton High School, a public school in Washington state, he initially prayed alone after games, but over time some of his players – and eventually a majority of the team – joined him. One parent complained that his son, a player on the team, felt like he had to join in the prayer, even though he was an atheist, or face a loss of playing time.”

Bremerton School District officials had attempted to accommodate Kennedy after warning him to stop the prayers as District officials clarified that they did not want to violate the Constitution’s establishment clause, which prohibits the government from favoring one religion over another.

The district offered Kennedy the ability to pray after the crowd had left the stadium or in a private space both options that he refused. Kennedy had retained counsel and the legal team indicated that they would pursue father legal action.

According to media accounts he then prayed publicly with his players at two more games after which he was placed on administrative leave. After a review which included a recommendation by the head football coach that he be terminated, Kennedy was let go and then filed a federal lawsuit alleging that Bremerton School District had violated his First Amendment rights and federal civil rights laws.

Joseph Kennedy being interviewed by NBC News affiliate KING-TV 5, Seattle, Washington

Kennedy came to the Supreme Court in 2018 seeking to get his job back while litigation continued. The court turned him down, but Justice Samuel Alito penned a statement regarding that denial that was joined by Justices Clarence Thomas, Neil Gorsuch, and Brett Kavanaugh. Alito wrote that Kennedy’s free-speech claim raised important issues, and he suggested the case may warrant review in the future,” SCOTUSblog reported.

Ultimately, the U.S. District Court rejected Kennedy’s argument ruling against him and the case was then heard by a 3 judge panel of the U.S. Court of Appeals for the 9th Circuit, which upheld that decision. The 9th Circuit turned down a petition for an En banc (full) review by the entire 9th Circuit.

Kennedy returned to the Supreme Court in September 2021, telling the justices that the 9th Circuit’s ruling used “imagined Establishment Clause concerns to inflict real Free Exercise Clause damage,” he argued adding; “The religious expression of hundreds of thousands of teachers in the Ninth Circuit is now on the verge of extinction,” he contended. Moreover, Kennedy added, the ruling’s “chilling effects elsewhere around the country are palpable, as the Ninth Circuit essentially held” Kennedy’s “efforts to publicize the denial of his constitutional rights against him.”

The school district countered that whether Kennedy has the right to a “brief, quiet prayer by himself while at school” “is entirely beside the point” – particularly when, the district insisted, “every word of that description is wrong.” The dispute before the court, it stressed, is “about a school district’s authority to protect students when its employee does not work with it to find a reasonable accommodation.” A ruling for Kennedy, the school district warned, would require the Supreme Court “to overturn decades of settled law under both the Free Speech and Establishment Clauses,” SCOTUSblog reported.

The Justices declined to take up a case on appeal from the U.S. Court of Appeals for the 10th Circuit, 303 Creative LLC v. Elenis, brought by The Alliance Defending Freedom, (ADF)- listed by the Southern Poverty Law Center as an anti-LGBTQ extremist hate group.

The case stemmed from a Lakewood, Colorado based web designer, who sued to challenge Colorado’s anti-discrimination law. ADF filed its appeal last Fall asking the U.S. Supreme Court to review that ruling.

Lorie Smith, claimed in court filings that the Colorado law violated Smith’s freedom of speech and freedom of religious expression, citing that it would force her to design wedding websites for same-sex couples which violated her ‘Christian’ beliefs.

In its 2-1 ruling, the 10th Circuit panel said Colorado had a compelling interest in protecting the “dignity interests” of members of marginalized groups through its law.

In a statement issued by ADF, the Arizona based firm claimed; “The 10th Circuit issued an unprecedented decision in the case, 303 Creative v. Elenis, holding that Colorado’s Anti-Discrimination Act both forced Lorie “to create websites—and thus, speech—that [she] would otherwise refuse,” and also created a “substantial risk” of removing “certain ideas or viewpoints from the public dialogue,” including Lorie’s beliefs about marriage.”

ADF added; “The lawsuit contends that Colorado Revised Statute § 24-34-601(2)(a) violates the First Amendment’s Free Speech and Free Exercise clauses. The state law is the same one the commission twice used against Masterpiece Cakeshop cake artist Jack Phillips, who is currently being harassed by an activist attorney in a third lawsuit that also attempts to use Colorado’s law against him. After a trial resulted in a decision against Phillips, ADF attorneys representing him and his shop have appealed that case to the Colorado Court of Appeals.”

Colorado Solicitor General Eric Olson questioned whether Smith should even be allowed to challenge the law since she had not started offering wedding websites yet, the Associated Press reported.

But if she did, Olson said, her argument would mean she would refuse to create a website for a hypothetical same-sex couple named Alex and Taylor but agree to make the same one for an opposite-sex couple with the same names. He said that would be discrimination under the Colorado Anti-Discrimination Act, which prohibits discrimination on the basis of sexual orientation.

Judge Mark Beck Briscoe wrote in the majority opinion (303 Creative, et al. v. Elenis, et al.) that “we must also consider the grave harms caused when public accommodations discriminate on the basis of race, religion, sex, or sexual orientation. Combatting such discrimination is, like individual autonomy, `essential’ to our democratic ideals.”

In his dissent, Chief Judge Timothy Tymkovich wrote that “this case illustrates exactly why we have a First Amendment. Properly applied, the Constitution protects Ms. Smith from the government telling her what to say or do.

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U.S. Federal Courts

Federal Court rules against Tennessee’s anti-Trans restroom sign law

“Today’s decision ensures that the businesses who welcome them are not forced to become instruments for politicians’ discrimination”

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Estes Kefauver Federal Building and Courthouse Annex Nashville, TN (Photo Credit: GSA/U.S. Courts)

NASHVILLE – A U.S. District Court on Tuesday struck down the Tennessee law that required businesses and other entities that allow transgender people to use the public restroom that matches their gender to post a government-prescribed warning sign.

The measure known as House Bill 1182 (SB 1224), requires businesses or government facilities open to the public to post a sign if they let transgender people use multi-person bathrooms.

On July 9, 2021, the court granted a preliminary injunction blocking the law from going into effect, and today’s ruling strikes down the law permanently.

According to the text of the law, language would be required to be included on the signs reading: “This facility maintains a policy of allowing the use of restrooms [or another type of accommodation] by either biological sex, regardless of the designation on the restroom.”

“We applaud the court for recognizing that this law violates the First Amendment and harms transgender people,” said Hedy Weinberg, ACLU of Tennessee executive director. “Transgender individuals should be able to live their lives free of harassment and discrimination. Today’s decision ensures that the businesses who welcome them are not forced to become instruments for politicians’ discrimination.”

Screenshot via WVLT CBS 8 Knoxville

In the U.S. District Court for the Middle District of Tennessee ruling, U.S. District Court Judge Aleta A. Trauger noted; “It would do a disservice to the First Amendment to judge the Act for anything other than what it is: a brazen attempt to single out trans-inclusive establishments and force them to parrot a message that they reasonably believe would sow fear and misunderstanding about the very transgender Tennesseans whom those establishments are trying to provide with some semblance of a safe and welcoming environment.”

“Transgender Tennesseans are real. The businesses and establishments that wish to welcome them are real. And the viewpoints that those individuals and businesses hold are real, even if they differ from the views of some legislators or government officials,” Judge Trauger added.

The lawsuit was filed on behalf of Bob Bernstein and his restaurant Fido, who objected to the stigmatizing message that would have been required by this law. Fido has informal policies that allow customers to determine which restroom is appropriate for them and has not had any complaints or concerns about their restroom policies.

“As a former journalist, I believe strongly in free speech,” said Bob Bernstein, owner of Fido, a restaurant in Nashville. “The government can’t just force people to post discriminatory, inaccurate, and divisive signs in their places of business. I am glad that the court recognized that this law violates the First Amendment.”

“We’re thrilled to see the court rule in support of transgender and non-binary lives today. This signage law was simple cruelty – and cruelty is unjust,” said Henry Seaton, ACLU of Tennessee transgender justice advocate. “We’ll continue our pursuit of trans justice to its fullest extent, and hope that the trans and non-binary community feels relief and hope from this ruling.”

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U.S. Federal Courts

Federal court blocks part of Alabama trans medical treatment law

“Kids in Alabama can now continue to receive this lifesaving care, & doctors cannot be prosecuted simply for doing their jobs”

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Hugo L. Black United States Courthouse, Birmingham, Alabama (Photo Credit: US Courts/DXR)

BIRMINGHAM, Ala. — In a 32 page ruling released Friday evening, U.S. District Judge Liles Burke preliminarily enjoined the state from enforcing the law criminalizing medical care for transgender minors in Alabama.

The law made it a felony for Doctors and licensed healthcare providers to give gender-affirming puberty blockers and hormones to transgender minors.

Burke, who was nominated to the bench by former President Donald Trump to serve on the U.S. District Court for the Northern District of Alabama, wrote that the section of the Alabama Vulnerable Child Compassion and Protection Act that makes treatment of trans minor children a felony; “the Court finds that there is a substantial likelihood that Section 4(a)(1)–(3) of the Act is unconstitutional and, thus, enjoins Defendants from enforcing that portion of the Act pending trial.”

Judge Burke however ruled that all other provisions of the Act remain in effect, specifically: (1) the provision that bans sex-altering surgeries on minors; (2) the provision prohibiting school officials from keeping certain gender-identity information of children secret from their parents; and (3) the provision that prohibits school officials from encouraging or compelling children to keep certain gender-identity information secret from their parents.

The U.S. Department of Justice had challenged the state’s  SB 184 – a bill that would criminalize doctors for providing best-practice, gender-affirming care to transgender and nonbinary youth.

In the filing by the Justice Department, the complaint alleges that the new law’s felony ban on providing certain medically necessary care to transgender minors violates the Fourteenth Amendment’s Equal Protection Clause. The department is also asking the court to issue an immediate order to prevent the law from going into effect.

S.B. 184 makes it a felony for any person to “engage in or cause” specified types of medical care for transgender minors. S.B. 184 thus discriminates against transgender youth by denying them access to certain forms of medically necessary care.

It further discriminates against transgender youth by barring them from accessing particular procedures while allowing non-transgender minors to access the same or similar procedures. The penalties for violating the law include up to 10 years of imprisonment and a fine of up to $15,000. S.B. 184 would force parents of transgender minors, medical professionals, and others to choose between forgoing medically necessary procedures and treatments, or facing criminal prosecution.

The United States’ complaint alleges that S.B. 184 violates the Equal Protection Clause by discriminating on the basis of sex and transgender status.

LGBTQ legal rights advocates SPLC, GLAD, NCLR, and HRC, joined by co-counsel King & Spalding LLP and Lightfoot, Franklin & White LLC, had previously filed a legal challenge in federal district court against Alabama SB 184.

Shannon Minter, the Legal Director for the National Center for Lesbian Rights, one of the legal rights advocacy groups who had sued Alabama told the Blade late Friday night:

“We are thrilled by this outcome, which will provide enormous relief to transgender children and their families. As the court recognizes, this is well established medical care that has been endorsed by 22 major medical associations. Thanks to this decision, kids in Alabama can now continue to receive this lifesaving care, and their doctors cannot be prosecuted simply for doing their jobs. This is a huge victory for compassion and common sense and a much needed antidote to the tidal wave of hostile legislation targeting these youth.”

In addition to the U.S. Justice Department,  the doctors challenging SB 184 in Ladinsky v. Ivey are Dr. Morissa J. Ladinsky and Dr. Hussein D. Abdul-Latif, both providers at the Children’s Hospital of Alabama and members of the medical staff at the University of Alabama at Birmingham Hospital and the teaching staff at UAB School of Medicine. Dr. Ladinsky and Dr. Abdul-Latif have long-term expertise in caring for transgender children of Alabama families. Under SB 184, they both face criminal penalties including up to 10 years in prison if they continue to provide that support to their patients.

The Alabama family plaintiffs are proceeding anonymously to protect their children. They include Robert Roe, and his 13-year-old transgender daughter Mary, of Jefferson County; and Jane Doe and her 17-year-old-transgender son John, of Shelby County. These families have deep ties to Alabama. If SB 184 is allowed to go into effect both families will be forced to choose between leaving the state, breaking the law, or facing devastating consequences to their children’s health.

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U.S. Federal Courts

Federal court overturns asylum ruling demanding man prove he’s gay

The initial ruling was the asylum bid was frivolous because he fabricated a key element of his application & failed to establish he’s gay

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Courtroom, 9th U.S. Circuit Court of Appeals (Photo Credit: Library of Congress/GSA)

SAN FRANCISCO – A three-judge panel of the 9th U.S. Circuit Court of Appeals unanimously ruled against a U.S. Immigration judge’s finding that denied an asylum bid by a Nigerian man who says he is gay.

The court documents filed by Peter Udo asserted a fear of persecution or torture in Nigeria based on his status as a gay man and the harm he suffered after being discovered having sex with his boyfriend in a hotel.

According to Reuters, the U.S. Board of Immigration Appeals had affirmed an immigration judge’s ruling that Udo’s asylum bid was frivolous because he deliberately fabricated a key element of his application and failed to establish that he is gay.

Udo initially gave an asylum officer the name of a hotel that did not exist, later saying that he was afraid to identify the actual hotel, according to court filings.

But the location of the hotel is at best ancillary to Udo’s claims, the 9th Circuit said, “and is certainly not a material element.”

Udo fled Nigeria after being beaten and detained by Nigerian authorities filing a claim for political asylum in part based on the 2014 Nigerian law that criminalizes homosexuality, same-sex marriage, and same-sex relationships.

The 9th Circuit returned the case Wednesday to the U.S. Board of Immigration Appeals to reconsider Udo’s case.

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