Category archives: The Courts

Is Judge Duncan an “Ultra-Conservative” or Just an Originalist?

by Katherine Beck Johnson

June 16, 2020

The Guardian put out a piece attempting to criticize Judge Stuart Kyle Duncan on the Fifth Circuit Court of Appeals. The piece only succeeded in highlighting the author’s fundamental misunderstanding of the role of a judge. It is not the role of a judge to weigh into what the law should be, but rather the judge interprets what the law is, the law enacted by the people’s representatives. 

Many of President Trump’s judicial nominees are originalist and textualist. While these may be considered “conservative” judicial philosophies, the result is not always conservative policy goals. If the judge is interpreting a “liberal” law, the text will lead to a result that is liberal. The basic goal of originalism and textualism is that the people, not unelected judges, say what the law ought to be. The judge’s role is to say what the law is, or what the people enacted through their elected officials. Therefore, the Guardian’s fearmongering piece claiming that the judges appointed by President Trump have any role in abortion law is false. It isn’t Trump-appointed judges, it’s the people that have the role of saying what abortion laws should prevail in their states. Judge Duncan is no exception to this rule.

The piece quotes the legal director at Alliance for Justice saying, “For the overwhelming number of cases, the constitutional rights of the people in Texas, Louisiana and Mississippi will be made by Kyle Duncan and the other ultra-conservatives on the fifth circuit.” This is false. The rights of the people will be made by the people—not the judges on the fifth circuit.

While a lawyer in private practice, Judge Duncan advocated for Louisiana’s law that is currently before the Supreme Court: June Medical v. Russo. This law requires abortionists to have admitting privileges at a nearby hospital. It’s a commonsense law that demands abortion facilities abide by the same rules as all other outpatient surgical centers. When Judge Duncan was in private practice, he defended this law on behalf of the state of Louisiana until he became a judge. The Fifth Circuit, where Judge Duncan now sits, upheld this law. Judge Duncan followed proper judicial protocol and recused himself from the case because he had advocated for Louisiana when he was in private practice. He has clearly conducted himself in an ethical manner on the Fifth Circuit.

The Guardian piece is yet another example of a judge being attacked for their faith, as the piece specifically points out Judge Duncan’s Catholic faith. In America, one’s religion does not prevent them from being selected for a job. Judge Duncan’s history advocating for religious liberty is another aspect of him that the piece viewed as problematic. A judge that recognizes our first freedom, our freedom of religion, is not problematic. Judge Duncan understands just how important religious liberty is to our Constitution.

The Constitution makes it clear that the role of a judge is to say what the law is and not what the law ought to be. The people of the United States are the ones charged with saying what the laws that dictate their lives should be. Judge Duncan knows his role as a judge and has done a wonderful job. We need more judges like Judge Duncan.

The Sixth Circuit Allowed Abortion Activists to Challenge a Pro-Life Law. The Supreme Court May Soon Stop the Practice.

by Katherine Beck Johnson

June 5, 2020

Abortion was back in the federal appellate courts this week, this time because of a challenge to Kentucky’s dismemberment ban. In April 2018, Kentucky House Bill 454 was signed into law. It prohibited abortions that “result in the bodily dismemberment, crushing, or human vivisection of the unborn child” if the child is 11 weeks or older.

Kentucky wanted to outlaw dismemberment defined as “a procedure in which a person, with the purpose of causing the death of an unborn child, dismembers the living unborn child and extracts portions, pieces, or limbs of the unborn child through the use of clamps…” This is certainly not the first time a type of abortion procedure has been outlawed. In Gonzalez v. Carhart, the Supreme Court upheld Congress’s law that outlawed partial-birth abortion, a procedure that involves partially delivering the baby alive before ending the life.

Two judges in the Sixth Circuit struck down the Kentucky law. The majority lamented about how women have a right not to be burdened while obtaining an abortion. However, the majority failed to acknowledge that a woman could still obtain an abortion, just not one using the dismemberment method. Judge John Bush, a Trump appointee, wrote his strongly worded dissent. Bush spoke about the conflict of interest between abortion providers representing women in court. Judge Bush noted that two abortion providers and a clinic were claiming to advocate on behalf of women. Not a single party to the case had their constitutional rights directly impacted.

Judge Bush noted that, for some reason—whether financial, litigation strategy, or otherwise—EMW Women’s Surgical Center refused to obtain the training to perform fetal demise (kill the unborn child), regardless of the fact that studies indicate many women would choose fetal demise before a dismemberment procedure. It was clear from oral arguments that EMW was not looking out for what was best for women. When the abortion provider was asked what would happen if a woman did request fetal demise, the answer was that nothing would be done to honor her request.

Whether abortion providers should have the ability to automatically represent women in court is a question currently before the Supreme Court in June Medical Services v. Russo—a case in which the Court will be issuing an opinion in the coming weeks. Family Research Council filed an amicus brief arguing that there is no statutory authority granting abortion providers the ability to automatically stand in for women. There is a clear conflict of interest; abortion providers do not have women’s best interests in mind, and they should not be allowed to represent them in court. Abortion providers are looking out for themselves and their profit, which is a far cry from women’s health.

Let us hope the Supreme Court keeps this in mind when it rules in Russo in the coming weeks. Women facing pressure from the abortion industry deserve to have their true interests looked after, and their voices heard. Pro-life voters across America deserve to have their choices respected.

Ninth Circuit Rules in Favor of the Protect Life Rule, Again

by Patrina Mosley , Connor Semelsberger, MPP

February 25, 2020

After a months-long legal battle, the U.S. Court of Appeals for the Ninth Circuit (9th Circuit) ruled 7-4 that the Protect Life Rule, which separates federal Title X Family Planning funding from abortion facilities, can go into full effect.

In July 2019, an 11-judge panel sitting en banc in the 9th Circuit reinforced a decision that the Protect Life Rule could go into effect temporarily while the merits of the case against the rule filed by Planned Parenthood and several liberal states were argued. Since this July ruling, HHS has enforced this new rule which requires physical and financial separation between clinics that receive Title X funds for family planning services and facilities that perform abortions. It also prohibits physicians at Title X family planning clinics from referring patients for abortions.

Yesterday, the 9th Circuit finally ruled that the Protect Life Rule is constitutional and can go into full effect. This victory in the historically liberal 9th Circuit is a welcome sight and was made possible in part by the great work of President Donald Trump and the U.S. Senate to confirm 51 federal appeals court judges, including two 9th Circuit judges who took part in yesterday’s ruling. However, it would not be a surprise if Planned Parenthood and the other plaintiffs decided to appeal this ruling all the way to the Supreme Court, but even at the highest court in the land there is precedent for the Protect Life Rule to be upheld. In 1991 in Rust v. Sullivan, the Supreme Court upheld similar regulations governing Title X finalized under President Ronald Reagan. The decision in Rust was a crucial part of the opinion issued by the 9th Circuit yesterday, and suggests a similarly favorable outcome should this case reach the Supreme Court.

For far too long, the people’s tax dollars have been entangled with the abortion industry. Trump’s “gag rule” only gags the dishonesty and lack of integrity that has been taking place for decades, so ultimately the court’s decision to uphold the restrictions is a win for life and a win for women.

Under the Protect Life Rule, abortion is no longer considered to be “health care” or “family planning.” Abortion-performing entities like Planned Parenthood, who have decided not to comply with the new Title X restrictions, have by default opened up more opportunities for life-affirming health care centers like federally qualified health centers (FQHCs) and Obria, which provide even more services to women than Planned Parenthood.

To see a list of the Grantees who voluntarily withdrew from Title X grant awards, see our blog here.

As a result of restoring integrity to the Title X regulations, there will be an increased diversity of health care providers available for women to choose from in the federal family planning program, and the taking of innocent life will no longer be accepted as “family planning” in America.

The Link Between Abortion and Eugenics Makes Its Way to the Federal Appeals Courts

by Katherine Beck Johnson

December 19, 2019

Among a number of recent developments in the federal appeals courts regarding abortion jurisprudence, one of the most notable is their discussion of eugenics. Though the history of infamous characters like Margaret Sanger and the link between eugenics and abortion has been known for some time, it didn’t make its way into court opinions until Justice Thomas wrote a lengthy concurrence in Box v. Planned Parenthood explaining the history of abortion being used as a tool to achieve eugenic objectives.

In an attempt to curtail eugenics, Ohio passed a law, H.B. 214, which prohibits any person from purposefully inducing an abortion if the person has knowledge that the pregnant woman is seeking the abortion in whole, or in part, because the unborn child has Down syndrome. A federal district court issued a preliminary injunction which stopped the law from going into effect, and a divided panel of the Sixth Circuit affirmed that ruling. On December 13, the en banc Sixth Circuit vacated the panel’s ruling and agreed to hear the case before the entire court.

Dissenting from the earlier Sixth Circuit panel’s opinion, Judge Batchelder noted how Ohio’s law promotes a compelling interest in preventing abortion from becoming a modern day eugenics tool. She said, “Ohio concluded that permitting physicians to become witting accomplices to the deliberate targeting of Down [s]yndrome babies would undermine the principle that the Down [s]yndrome population is equal in value and dignity to the rest of Ohio’s population, and would do deep damage to the integrity of the medical profession.”

Judge Batchelder is not the only judge to follow Justice Thomas’s lead and talk about the link between abortion and eugenics. Recently, the Fifth Circuit struck down Mississippi’s 15-week abortion ban. While he stated he was bound by Supreme Court precedent to reach this result, Judge Ho, a President Trump appointee, wrote a concurrence in which he noted that abortion is found nowhere in the Constitution, and that “the district court’s claim that it is racist to believe in the sanctity of life is particularly noxious, considering the racial history of abortion advocacy as a tool of the eugenics movement.”

It is encouraging to see appellate judges proclaim the history between abortion and eugenics. This could lead to a more clearly recognized state interest in stopping eugenics in this context, one which could eventually become compelling enough to outweigh a woman’s “right” to privacy. In the interim, we appreciate these judges exposing the history and modern-day link between eugenics and abortion.

Good News for Women and Life: Kentucky’s Ultrasound Law is Here to Stay

by Katherine Beck Johnson

December 11, 2019

On Monday, the Supreme Court denied cert in EMW Women’s Surgical Center v. Meier. By denying cert, the Supreme Court allowed Kentucky’s ultrasound law to stand, as the Sixth Circuit held the law was constitutional this spring.

Referred to as H.B. 2, the law requires an abortion provider, prior to performing an abortion, to perform an ultrasound; display the ultrasound images for the patient; and medically explain the development of the unborn child. In April, the Sixth Circuit upheld Kentucky’s law, holding that because the law “requires the disclosure of truthful, nonmisleading, and relevant information about an abortion, we hold that it does not violate a doctor’s right to free speech under the First Amendment.”

Kentucky is far from alone in regulating ultrasounds prior to an abortion. Twenty-six states have an ultrasound requirement. Fourteen states require abortionists to display and describe an ultrasound image before an abortion. Nine states require that the abortion provider offer the woman an opportunity to view the image. These ultrasound laws allow women to be more informed about the life growing within them, rather than keeping women in the dark. Ultrasound images are powerful tools that illustrate and humanize the life within the woman. Pro-choice advocates claim they are for women’s choice, yet they fight laws that would properly inform women about the very choice they are making.

The appellate courts are still divided on these laws. In January 2012, the Fifth Circuit upheld Texas’s ultrasound law. In Texas, abortion providers are required to show the women an ultrasound and provide a medical explanation of the size of the unborn child along with the development of the child. After April’s ruling in favor of Kentucky’s ultrasound law, the Sixth Circuit now joins the Fifth Circuit. In 2014, the Fourth Circuit struck down North Carolina’s ultrasound law, holding that it violates the free speech of abortion providers. The Supreme Court did not grant cert in that case.

It is a triumph for life that the Sixth Circuit’s opinion was allowed to stand. This is a welcome victory that allows the women in Kentucky to see their children in the womb and understand the medical aspects of the life within her. Women will now be better informed, and there is no doubt that life will be chosen more often thanks to H.B. 2. 

Planned Parenthood Forgoes Title X Funding, Choosing Abortion over Women’s Healthcare

by Connor Semelsberger, MPP

August 19, 2019

Today, Planned Parenthood officially withdrew from the Title X Family Planning Program, choosing to reject millions of dollars in federal funding rather than stopping referrals for abortion. This announcement came after their fifth failed attempt to find a court that would block the Protect Life Rule from going into effect while litigation over the legality of the rule continues. Ultimately, this shows the upside-down world of Planned Parenthood, in which abortion is prioritized more than women’s care.

The Department of Health and Human Services (HHS) issued the Protect Life Rule to require physical separation between clinics that receive Title X federal funds for family planning services and facilities that perform abortions. It would also prohibit physicians at Title X family planning clinics from referring patients for abortions.

After five months of mudslinging, Planned Parenthood is out of legal ammunition, and the Protect Life Rule is still squeaky clean. HHS has now won before numerous federal courts – a federal district court in Maine, a panel of the 4th Circuit, and two panels in the 9th Circuit. The last straw came on Friday, when not a single judge on the infamously liberal 9th Circuit was willing to block the Protect Life Rule. In other words, Planned Parenthood’s favorite court sent their lawyers home with their tails between their legs. This decision by the 9th Circuit allows HHS to begin enforcing the Protect Life Rule while the merits of the case are litigated.

Soon after the 9th Circuit lifted the nationwide injunction blocking the Protect Life Rule, HHS announced that all grantees that seek to comply in good faith must certify by August 19th that they do not provide abortions and do not include abortion as a method of family planning.

Yet rather than comply, Planned Parenthood backed out of the family planning program altogether. With their decision to withdraw, Planned Parenthood is sacrificing $16,120,000 in direct Title X grants, in addition to the millions more they receive as subgrantees of Title X funds.

Planned Parenthood and the mainstream media are already trying to spin the Protect Life Rule as a “gag rule” that is “forcing” Planned Parenthood out of a federal program that they have participated in for 50 years, but that couldn’t be farther from the truth. Despite Planned Parenthood’s loud protestations, The Protect Life Rule does not ban physicians from discussing abortion with their patients. The rule does prohibit physicians from referring patients for abortions, but it permits doctors to provide non-directive counseling on the risks and benefits of all options, including abortion.

Planned Parenthood has had every opportunity to comply with the new rules regulating the Title X program. HHS provided proper guidance and would have assigned them a project officer to help them comply with the regulations. Despite all this, Planned Parenthood chose abortion over helping provide family planning services to their clients. The organization touts itself as a leading women’s health provider, but Planned Parenthood turned their back on the needs of women when they opted to forego millions of dollars to fund critical family planning services so that they could keep promoting abortions.

The Title X statute is clear, “None of the funds appropriated under this act shall be used in programs where abortion is a method of family planning.” The Protect Life Rule does nothing more than fully enforce the Title X program as it was written into law. No matter what Planned Parenthood and other abortion advocates say, the Title X program was never intended to subsidize an industry that finds value in ending innocent human life.

Aside from harming the many women Planned Parenthood will no longer be able to serve, the main outcome of this decision is to make clear what Planned Parenthood’s true priority is: abortion.

Court Rulings on the Protect Life Rule Leave Abortion Advocates Stunned

by Connor Semelsberger, MPP , Mary Jayne Caum

July 15, 2019

Across the United States, courts tasked with hearing the lawsuits against the Trump administration’s pro-life rule changes to the Title X Family Planning Program agree, “the Government is likely to prevail.”

When the Trump administration’s Department of Health and Human Services (HHS) published the Protect Life Rule, pro-abortion groups such as Planned Parenthood lost no time in filing lawsuits to halt the Rule’s implementation. Believing they would be assigned a favorable judge, opponents of the Rule filed suit in the Ninth Circuit and other friendly courts. Although opponents obtained an advantageous ruling at the district court level, ultimately a three-judge panel in both the U.S. Court of Appeals for the Ninth Circuit (9th Circuit) and the Fourth Circuit (4th Circuit) decided to lift the preliminary injunctions and allow the Rule to be implemented temporarily. Opponents of the Rule suffered another failure when an 11-judge panel sitting en banc in the 9th Circuit reiterated that the Rule should be implemented while the merits of the case are heard. Lastly, a district judge in Maine refused to halt the Rule’s implementation while the merits of the case are litigated. That totals four devastating and seemingly unexpected adverse rulings opponents of the Protect Life Rule have suffered thus far. 

In each Court Opinion, the various courts explain the Protect Life Rule should go into effect during the lawsuit, because HHS will likely prevail in defending the Rule. This legal conclusion is reached for primarily two reasons: precedent and statutory interpretation. The Supreme Court Decision Rust v. Sullivan upheld regulations nearly identical to the Protect Life Rule. Additionally, the Rule adheres to applicable statutes. Therefore, courts across the nation conclude that HHS is likely to succeed on the merits because of the precedent established by Rust and the Rule’s lawful adherence to statutory law. An issue brief published by Family Research Council has further information on the legal arguments surrounding Title X. 

These legal proclamations are devastating for pro-abortion groups because it undermines a significant portion of their industry. The clear separation that the Protect Life Rule establishes between family planning funding and the abortion industry is contrary to their worldview. If the Protect Life Rule is ultimately upheld, abortion providers must adhere to the regulations in order to continue receiving Title X funds. If abortion providers such as Planned Parenthood refuse to comply, however, those Title X family planning funds can be diverted to other healthcare clinics such as Federally Qualified Health Centers (FQHCs), Rural Health Centers, and Pregnancy Resource Centers which provide certain services that would be eligible for Title X funding under the Protect Life Rule

Since taking office, President Donald Trump and the U.S. Senate have worked together to confirm 127 federal judges. Several of these judges were vital to lifting the preliminary injunction against the Protect Life Rule, including two in the 9th Circuit, two in the 4th Circuit, and one in the United States District Court for the District of Maine. The ability of President Trump and the U.S. Senate to confirm constitutionally-minded judges shows that elections have consequences and that victory in the courts is crucial.

Without a favorable ruling on the merits, abortion referrals will continue, co-mingling of funds will perpetuate, and precious babies developing in the womb will perish. Courts must continue to discard the shallow political arguments opponents of the Rule are making and choose to uphold the law. The survival of countless lives depends upon future legal victories. 

Mary Jayne Caum is a Policy intern at Family Research Council. Connor Semelsberger is Legislative Assistant at Family Research Council.

Supreme Court Will Determine Whether “Sex” Means “Sex”

by Peter Sprigg

April 23, 2019

LGBT activists want “sexual orientation” and “gender identity” (“SOGI”) to be protected categories in federal non-discrimination laws. They have been using a two-pronged attack to try to achieve this goal—working through both Congress and the courts.

In Congress, they are pushing a sweeping bill that would add sexual orientation and gender identity to virtually every federal civil rights law. But in the courts (and some quasi-independent agencies like the Equal Employment Opportunity Commission), they have promoted the idea that federal law already outlaws SOGI employment discrimination. The theory is that discrimination based on “sexual orientation” and “gender identity” is actually a form of discrimination based on “sex”—which was outlawed in the Civil Rights Act of 1964. (Note that these two approaches are in some ways contradictory—if the judicial theory is correct, then the Equality Act is largely superfluous.)

The latter of these two approaches has now taken a huge step closer to resolution. On April 22, the U.S. Supreme Court agreed to take up three cases addressing the SOGI issue (these cases will be heard in fall of 2019).

In two of the cases (Bostock v. Clayton County and Altitude Express v. Zarda), the Court will decide the “SO” question—whether discrimination against an employee due to “sexual orientation” is included in the prohibition on discrimination “because of … sex” contained in the Title VII of the Civil Rights Act of 1964.

In a third case, R.G. & G.R. Harris Funeral Home v. EEOC, the Court will decide the “GI” question—whether Title VII’s prohibition on discrimination “because of … sex” includes a prohibition on discrimination against transgender people based on (1) their status as transgender or (2) the “sex stereotyping” theory derived from Price Waterhouse v. Hopkins (“sex stereotyping” initially meant one couldn’t discriminate against, for instance, a man for wearing pants that looked feminine—but has now been used to claim one could not discriminate against a man for wanting to identify as a woman).

When Congress prohibited employment discrimination based on “sex” in the Civil Rights Act of 1964, both their intention and the plain meaning of the word indicated that they were prohibiting discrimination against an individual because the person is biologically male or biologically female. The Supreme Court should decline the invitation to radically re-write the statute by expanding its meaning to cover “sexual orientation” and “gender identity.” Even Justice Ruth Bader Ginsburg, writing years ago about sex nondiscrimination protections in the Equal Rights Amendment, refused to countenance the idea that they would do away with simple male/female distinctions in the context of bathrooms.

The failure of LGBT activists to achieve their goals through the democratic process is no excuse to simply bypass that process and obtain their goal by judicial fiat instead.

FRC believes that SOGI laws are unjustified in principle, because these characteristics are not inborn, involuntary, immutable, innocuous (like race and sex), or in the U.S. Constitution (like religion). We also believe such laws pose a threat to religious liberty in many situations, as was an issue in the Harris case that the Court will hear.

At the end of the day, the core issue before the Court in these cases is whether it is within the legitimate power of judges to suddenly rewrite a 55-year-old statute. The answer is no.

Return to the Constitution: Judicial Activism or Originalism?

by Zachary Rogers

February 12, 2019

FRC has consistently maintained that the Supreme Court needs to bring legal precedent more in line with the Constitution and the principles of the Declaration of Independence. But if this effort is taken up in earnest by a newly conservative Court, it is likely to be tarred as “judicial activism.” Judicial activism occurs when a judge applies his views rather than a faithful interpretation of the law to the case before him. What is needed, and what we look forward to seeing with the appointment of Justices Neil Gorsuch and Brett Kavanaugh and many more lower court judges, is judges’ faithful interpretation of the Constitution and the laws to the cases before them.

However, many on the Left think that overturning any of the bad precedent churned out by the Supreme Court is partisan judicial activism. It is not. To understand this, we must comprehend the structure the Framers crafted, the role of judicial review within it, and the place of the other branches within this system.

The Framers carefully crafted a system of ordered liberty, which entrusted certain enumerated powers to the national government and reserved the rest to the people and the states. The improved science of politics included checks and balances, separation of powers, and elected representatives.

They did this because the legislature and executive branch “could be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void.” In essence, Congress would promulgate laws, the president would execute them, and the Supreme Court would adjudicate the relevant laws in individual cases.

The Framers created a system of checks and balances in which ambition would be made to counteract ambition. Each branch was expected to protect its prerogatives and powers, thus enforcing separation of powers and preventing tyranny—the accumulation of legislative, executive, and judicial power. This system of limited government and ordered liberty under the Constitution has shifted since 1787.

The Constitution is the highest law of the land because it is the settled and deliberate will of the people against which congressional laws, executive actions, and Supreme Court decisions must be measured. Traditionally, all three of the branches were expected to be faithful to the Constitution in the execution of their duties.

The Progressive Era, however, caused the modern American regime to shift dangerously to the left. The president is no longer expected merely to execute the laws passed by Congress but to nudge the American people in a partisan direction. Congress spends little time passing laws; instead, it occupies most of its time overseeing executive agencies while delegating lawmaking to executive agencies. The Supreme Court perceives itself the ultimate interpreter of the Constitution—which could be defined in accord with the intent of the Framers or according to the “living” Constitution desired by the liberals.

The rise of the modern court occurred for two reasons. First, the theory of the living Constitution requires the document to be interpreted in accord with the spirit of the times. This requires it to have no fixed meaning, subject to varying interpretation, and acting as a vehicle of “progress” to move the American people forward. Second, modern liberals were able to use the courts to achieve social and political change. They were forced to do so because they were unable to achieve decisive victory at the ballot box, which would have allowed them to implement their desired laws and policy objectives.

One of the reasons Supreme Court practice has strayed from the Founder’s intentions is an erroneous understanding of Marbury v. Madison (1803). The modern understanding of this case is that the Supreme Court’s interpretation of the Constitution is the supreme law of the land, and all officials must comply with it. In fact, the Court ruled that when a law conflicts with the Constitution it is the Constitution that is paramount.

Judicial review is simply the authority to declare acts void when they conflict with the Constitution. A strict fidelity to the original meaning of the Constitution limits judges’ power. If a law violates the Constitution of the Framers, then it must be declared void.

Therefore, Supreme Court decisions are not the last word and may in fact be revisited in order to uphold a proper constitutional construction. In this partisan atmosphere, Christians and conservatives should expect charges of judicial activism in an effort to tar genuine efforts to return to constitutional law. A true recognition of judicial activism lets the American people distinguish between a rejection, distortion, or return to the Constitution.

Zachary Rogers is a Government Affairs intern at Family Research Council.

Justices Alito, Thomas, Gorsuch and Kavanaugh: We See Religious Freedom Problems with Coach Kennedy Case

by Travis Weber, J.D., LL.M.

January 22, 2019

Today the Supreme Court refused to take up the case of Coach Joe Kennedy, but some of the justices nonetheless sent a signal in favor of religious liberty.

Coach Kennedy, represented by our friends at First Liberty Institute, is a Christian high school football coach from Bremerton, Washington, who was punished after taking a knee and praying on the field after games. His case has been deliberated in federal district court, then the Ninth Circuit Court of Appeals, before making its way to the Supreme Court.

While the Court’s refusal to hear the case is not ideal, it appears that unresolved factual questions (the lower court never concluded whether Coach Kennedy was punished for praying or neglecting his professional duties) prevented the Court from hearing the full case and taking up the First Amendment free speech claim.

Justice Alito, joined by Justices Thomas, Gorsuch, and Kavanaugh, penned a separate statement (see pp. 8-13) explaining that while he understands and agrees with the Court’s reason for not taking the case right now (if asked to do so, he would direct the lower court to reach a conclusion on this question, but at this point the Court was only asked to decide the legal question), he doesn’t necessarily agree with the lower court rulings, which appear problematic for religious liberty and the First Amendment:

While I thus concur in the denial of the present petition, the Ninth Circuit’s understanding of the free speech rights of public school teachers is troubling and may justify review in the future.

Alito criticized the “highly tendentious way” the Ninth Circuit applied the case of Garcetti v. Ceballos (dealing with the First Amendment rights of public employees) to Coach Kennedy’s situation, which would have required public school employees like teachers and coaches to refrain from any religious activity a student might see or the school might not like, from the time the teacher or coach shows up in the morning until the time they leave. Alito concluded:

If the Ninth Circuit continues to apply [this] interpretation of Garcetti in future cases involving public school teachers or coaches, review by this Court may be appropriate.

Alito wasn’t finished:

What is perhaps most troubling about the Ninth Circuit’s opinion is language that can be understood to mean that a coach’s duty to serve as a good role model requires the coach to refrain from any manifestation of religious faith—even when the coach is plainly not on duty. I hope that this is not the message that the Ninth Circuit meant to convey, but its opinion can certainly be read that way. After emphasizing that [Coach Kennedy] was hired to “communicate a positive message through the example set by his own conduct,” the court criticized him for “his media appearances and prayer in the [Bremerton High School (BHS)] bleachers (while wearing BHS apparel and surrounded by others).” [citation omitted] This conduct, in the opinion of the Ninth Circuit, “signal[ed] his intent to send a message to students and parents about appropriate behavior and what he values as a coach.” [citation omitted] But when [Coach Kennedy] prayed in the bleachers, he had been suspended. He was attending a game like any other fan. The suggestion that even while off duty, a teacher or coach cannot engage in any outward manifestation of religious faith is remarkable.

It’s very encouraging to see Justice Alito on record noting the religious liberty problems with this case—something we’ve come to expect from him—along with Justices Thomas and Gorsuch. But it’s particularly heartening to see Justice Kavanaugh join this statement. While his judicial record would have suggested he’d rule the right way on religious liberty issues once seated on the Court, his refusal to join these three justices in dissenting from denial of cert in the Planned Parenthood defunding cases late last year left many wondering whether he would be a true originalist. While these actions don’t necessarily indicate how the justices will rule on the merits (there’s a good chance Justice Roberts still agrees with his originalist colleagues on these matters), they are heartening nevertheless.

Justice Alito concluded by almost inviting Coach Kennedy to ask the Court to reconsider Trans World Airlines, Inc. v. Hardison, a Title VII case lowering employee protections against religious discrimination, and Employment Division v. Smith, which cut back on Free Exercise protections and prompted the Religious Freedom Restoration Act to be passed over twenty-five years ago.

Let us hope Justices Alito, Thomas, Gorsuch, and Kavanaugh are prophesying where the Court is going on religious liberty.

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