How Will Your House of Worship Utilize the SCOTUS Ministerial Exception?

Who among them can be fired?

Earlier this month, SCOTUS issued a unanimous decision in Hosanna-Tabor Lutheran Evangelical Church vs EEOC.  The case holds that a church receives freedom of religion protection under the First Amendment when it comes to employment termination decisions.

This case came about because the school, located right here in Wayne County, MI, fired one of the school's "called", or vocational teachers.  The church utilized both lay teachers, and vocational teachers; the latter being formally ordained by the church congregation and equipped with a "diploma of vocation".

Cheryl Perich started out at the school as a lay teacher, then earned her diploma and was commissioned as a "called" teacher in 1999.  Her problems with teaching at the school began at the start of the 2004 school year when she was diagnosed with severe narcolepsy (sudden deep sleeps from which a person cannot be roused) and placed on disability.

When Ms. Perich attempted to return to school with medical clearance, she was fired.  She filed a claim with the EEOC alleging her firing violated the Americans with Disability Act.  The U.S. District Court for the Eastern District of Michigan agreed with the church school that the so-called "ministerial exception" to our employment laws applied; summary judgment was granted.

On her appeal to the U.S. Sixth Circuit Court of Appeals, the lower court was reversed and instructed to allow Ms. Perich to present her claims that the firing had been retaliatory.

This case was one of the first to be argued before SCOTUS last fall.  Due to the unclear scope of the "ministerial exception", the case received much attention from the legal media and court watchers.

In its decision, SCOTUS ruled that the doors of the courthouse were essentially closed to ministers claiming violation of state or federal workplace discrimination laws.  The decision is now being touted as the most significant church-state ruling from SCOTUS since its 1990 decision affirming a general government prohibition of spiritual peyote smoking by Native American Indians.

The EEOC urged the High Court to limit the application of the "ministerial exception" to employees who functioned in an "exclusively religious function" (i.e. not teachers).  SCOTUS refused to take the bait, with Chief Justice John Roberts, the author of the opinion, characterizing the government's plea as an extreme position.

So now, the line remains unclear.  SCOTUS did not precisely define how far into the church's employee roster the exception goes.

Nevertheless, the Court's decision pointed to significant factors in holding that the exception applied in this case: Ms. Perich was ordained by the church; that she performed "important religious functions" in addition to her mostly secular teaching duties; that she taught a religion class 4-days per week, etc.

Critics of the decision wonder why only the employment discrimination laws do not apply to religious employees of a house of worship.  For example, if a senior minister conducts a campaign of sexual workplace harassment upon a junior pastor, does this decision now bar the junior pastor's claims?

No doubt, there will be more cases in the future that will require the courts to define this exception with more precision.

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Anonymous Internet Critics

This blog has covered the defamation lawsuit filed by the Cooley Law School against one if it's more vocal critics; one of the legion of graduates that has trashed the law school in a blog titled "The Thomas M. Cooley Law School Scam".  This post brings our readers up to date with some important recent developments in the case.

Cooley's defamation suit, pending in the Ingham County Circuit Court, was assigned to Circuit Judge Clinton Canady III. Cooley is represented by the Miller Canfield law firm and the anonymous blogger, using the pseudonym "Rockstar05", is represented by Berkeley, MI attorney John Hermann.

For their part, Miller Canfield has been vigorously prosecuting their cause of action, issuing subpoenas in two states [Michigan and California] to the Rockstar05's Internet service provider, seeking to rip the lid off the blogger's identity.

In September and October, hearings were conducted on Rockstar05's motion to quash Cooley's subpoenas.  Somewhere along the way, the internet service provider in California apparently made an inadvertent disclosure of the blogger's identity to the Miller Canfield firm, who immediately moved the court to amend the complaint, seeking to add the now-disclosed individual to the suit.

Judge Canady initially sequestered the pleadings and documents that referenced Rockstar05's identity while it considered supplemental briefings on this First Amendment issue.  In October, however, the lower court denied Rockstar05's motion to quash the subpoena, providing time for defendant to lodge an interlocatory appeal, and allowing an amicus [various media organizations] to intervene in the case.

Rocktar05 has appealed Judge Canady's decision relative to the subpoena.  The media has filed a hard-hitting amicus brief.  Miller Canfield's response on behalf of Cooley Law School is expected to be filed any day now.

This blog predicts that the Michigan Court of Appeals will grant leave for this issue to be decided; apparently one of first impression here in Michigan.

At stake is the ability of vocal critics of a "public figure" to express their opinion anonymously, without the fear of having their mask pulled off, and their identity disclosed.

You'll have to stay tuned for the results on this important case.  It could likely take a few years to wind its way through the court system.

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SCOTUS Opens Term with First Amendment Case from Michigan

The church can fire its priest, but can it fire the altar boy?

The case of Hosanna-Tabor Evangelical Lutheran Church and School v EEOC is one of the first cases to be argued in the 2011-2012 SCOTUS term that opens today in Washington D.C. This First Amendment freedom of religion case arises from an employment dispute at a now-defunct church in Redford, MI.

The issue in the case is the scope of the long-recognized exception to the federal employment discrimination laws when it comes to hiring or firing the clergy for a church, synagogue, or mosque.  This so-called "ministerial exception" has been recognized by all 12 federal appellate courts with the authority to hear such cases, as well as the supreme courts of 10 states.

The rationale behind the exception is that religious organizations, under the freedom of religion, should be allowed to make their own decisions about hiring and firing clergy, without concern of the normal anti-bias laws.  The question to be argued before SCOTUS on Wednesday morning is how deep into the staff and the payroll this ministerial exception goes.

Most religious institutions want the freedom to make all staffing decisions without concern for federal employment law; not just decisions relating to the pastor, the priest, the rabbi or the imam.  They are pushing for a flat-out ban on all anti-bias laws for any staffing decisions.

The Solicitor General asserts that, to the extent it is recognized, the church's interpretation of the exception is too broad.  Church staff members, the federal government will argue, are protected by federal and state employment laws.

The Hosanna-Tabor Church case involves a parochial school teacher who was fired allegedly because of her numerous disability-related complaints; the claim is that her firing by the church-school was retaliatory.  If the High Court considers her to be the equivalent of a clergy member, then she cannot seek the shelter of the Americans with Disabilities Act; if she is deemed to be a mere staffer, then she is entitled to protection under the applicable laws.

SCOTUS has seen disputes akin to this in prior petitions.  One of the reasons the Redford, MI church's petition may have been selected is because it was prepared and filed by University of Virginia Law School's Professor Douglas Laycock; one of the nation's leading experts on church-state law.

Our First Amendment jurisprudence continues to grow ever richer.  Stay tuned for the result.

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Anti-Shariah Law (Part II)

State Rep. Rashida Tlaib (D-Detroit)

The Law Blogger recently posted on the Anti-Shariah movement earlier this month.  Now, the Michigan legislature is getting in on the act along with the American Bar Association.

HB 4769, sponsored by Rep. Dave Agema of Grandville and numerous other legislators, seeks to restrict contracts and agreements calling for the application of foreign laws whenever such application would conflict with the rights set forth in the U. S. and Michigan Constitutions.  The bill was introduced last week and was assigned to the Judiciary Committee of the Michigan House of Representatives.

Judges presiding over disputes involving such contracts and agreements would be required to amend the application of the foreign law to protect the litigant's constitutional rights.  If an amended application of the choice of law provision is not feasible, then the foreign law provision is deemed null and void.

Under such a provision, you could kiss Shariah Law goodbye; at least if either party to an agreement calling for the application of the Islamic code wanted to escape the burden of the contract.  This scenario would come up most often in the family law context where prenuptial agreements between religiously devout Muslims frequently call for the application of Shariah Law in the divorce judgment.  If Agema's bill passes, the family court judge could not honor the prenuptial agreement.

This possibility has Michigan's Arabic community speaking out.  Michigan's only Muslim legislator, Rep. Rashida Tlaib (D. Detroit), called a press conference to denounce Agema's bill, stating that her constituents found it "very very offensive" to the extent the bill would cast suspicion on Muslims.

Transactional attorneys that negotiate contracts with international choice of forum clauses are concerned these provisions would be subject to litigation.  Until now, such contract clauses routinely have been  enforced by Michigan judges.

In the last few years, anti-foreign law bills have sprung up in 22 state legislatures but only Arizona managed to pass their bill into law in April.  In the 2010 elections, Oklahoma voters approved an anti-foreign law ballot measure, but the proposal was short-lived having been invalidated in federal court on First Amendment grounds.

The American Bar Association passed resolutions earlier this month denouncing any federal or state laws that impose blanket prohibitions against the use of foreign laws or religious codes.

In our free society where the First Amendment reigns supreme, just who's law is it anyway?  Go figure.

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Ex-Spouse Takes Out Divorce Angst on his Blog

Boy, would I welcome the chance to write this appeal.

A family court judge in Bucks County, Pennsylvania has enjoined divorcee Anthony Morelli from operating his web site devoted to his ex-wife; thepsychoexwife.

Judge Diane Gibbons based her decision on grounds the Father's blog, which details his failed marriage, his tortuous divorce process, and its protracted custody battle, is harming his young children.  In fact, the blog does a hatchet job on his ex.

Morelli says the blog is a forum where he can help others "minimize conflict" and connect to share stories. He would like us to think of his blog as a kumbaya community where divorced men can rip their ex-wives with impunity.  Touching, for real.

His lawyers have appealed Judge Gibblons' injunction claiming it is an unconstitutional prior restraint in violation of Morelli's First Amendment right to free speech.

For her part, Morelli's ex-wife says their children know about the blog, which is a shame.

Since he started the blog back in 2007, it has attracted a robust readership of nearly 200,000 new followers per month.  At one point, Morelli was earning money from third-party advertisements on the blog.

We'd love to cultivate that type of readership over here at the Law Blogger; figures that such a negative energy factory would do so well.

Prior restraint of free speech, however, is a serious problem in this case.  Judges, even family court judges, cannot restrain our free speech.  A blog is one of the most common contemporary media designed to amplify freedom of expression.  If a blogger lacks taste and restraint, should a local judge act as a censor?

Judge Gibbons' injunction in the Morelli case will undoubtedly be reversed on appeal.

Do you think family court judges should be able to regulate the content of a party's speech in a high-conflict divorce proceeding?  Where would you draw the line; threats? abusive commentary?

We would like to know what you think on this issue...

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The Anti-Shariah Movement

There is a growing movement afoot in the United States and Western Europe to arrest the perceived expansion of Islamic Law; also known as Shariah Law.  As the Anti-Shariah movement gains momentum here in the US, it is bumping up against the "free speech" clause of our First Amendment.

Sharia, the Islamic code that guides a Muslim's beliefs and conduct, is increasingly viewed by some legislators as a legal system that seeks world domination.  This fear has been attached to Islam for centuries.

The most vocal leader of the contemporary Anti-Shariah movement, David Yerushelmi, was profiled on the front page of last Sunday's NYT.  An attorney in New York and a Hasidic Jew, Mr. Yerushelmi has aligned himself with a phalanx of conservative think tanks while making a national mark as an expert on Shariah.  His recent accomplishments include drafting model Anti-Shariah legislation and filing lawsuits against the government that cite Shariah as, "one of the greatest threats to American freedom since the cold war," according to the NYT.

His warning is being echoed on the floor of statehouses throughout the country.  The actual extent of this perceived threat is highly debatable.

Should U.S. Courts ever defer to religious tribunals?  It happens more than you may realize. 

For example, the United States Court of Appeals for the Fifth Circuit in New Orleans upheld an arbitration award handed down by the Institute for Christian Conciliation.  Also, state courts have long upheld decisions made in Jewish courts known as a bet din.  Even Islamic courts, particularly in the area of family law, receive some "faith and credit" in state courts (if not full faith and credit).

 Particularly in the area of family law, there is an academic perception that religious women are often pressured by spouse and family into arbitrating in religious tribunals.  A problem arises when these tribunals then disregard principles of basic equity, fairness and even constitutional protections.

Recent state appellate decisions, one from New Jersey and one from Maryland, provide a fascinating insight into the issue of Shariah Law now confronting state court judges on an frequent basis.

Some state legislatures are drafting bills that would prohibit state court judges, particularly family court judges, from any consideration of the Shariah; all litigants would be bound by applicable state laws.

Perhaps this would be best.  We are, after all, in America, are we not?

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Violent Video Games Are Protected Free Speech Says SCOTUS

On the final day of the 2010 term, as their long summer break beckoned, SCOTUS issued a notable decision involving the regulation of video game content.   Brown v Entertainment Merchants Association is a 7-2 decision invalidating California's ban of violent video game sales to minors on the grounds that such regulation is an unconstitutional restriction on protected free speech.

So now, when California's pre-teens are committing untold violent capital felonies in Grand Theft Auto, at least they will not be breaking the law in the real world.

Under the First Amendment, SCOTUS held that such speech is protected, even if expressed in the format of a violent video game available to minors.  Therefore, the state regulation of such speech would be subjected to a reviewing court's "strict scrutiny".

Under such a standard, California's video game regulation did not survive.  The SCOTUS decision affirms the 9th Circuit's opinion, reaching a similar conclusion that, like books and plays before them, video games are a valid and recognized form of free expression in our society, cloaked with all the protections of the First Amendment.  Such free speech protections do not vary with a new and different medium of communication.

The High Court was unpersuaded by California's rationale that interactive video games posed a special problem by the child's participation in the outcome of the violence depicted on the screen, and therefore required content-based restrictions.

This is one of those "in your face" moments of Americana.  It seems that, if left to our own devices, our multi-faceted talents and diverse commerce-based culture will unerringly produce this stuff for mass public consumption.

Some of the legistlators on the left coast tried to regulate the content of such expression, at least where minors were concerned.  Well, our babies gotta grow-up sometime; why not inject them at an early age with a serious dose of interactive urban crime or intergalactic slaughter. 

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High Court Rules Religious Mom Cannot Homeschool

Admittedly, the New Hampshire Supreme Court's recent decision favoring public school over homeschooling by Mother does not bind any of the courts in our jurisdiction.  Nevertheless, the ruling is instructive for anyone wrangling with family court issues.

This blog tracked the dispute in an earlier post as the case was submitted to the High Court following oral arguments.

Here are the basic facts: Post-divorce, Mother was homeschooling her daughter over Father's objection.  The religious component of Mom's in-home curriculum gave Dad indigestion, so he made an appointment with his divorce lawyer.

The family court appointed a Guardian Ad Litem to review the matter and make a recommendation to the judge.  The GAL concluded that public school was in the best interest of the minor child and so ruled the family court judge.

On appeal, Mother broadly challenged the judge's power to do so, raising a host of religious-based First Amendment arguments. The NH Supreme Court affirmed the family court on narrow grounds, finding that within the context of this particular dispute, the family court's discretionary powers were properly exercised in favor of what it determined was in the best interests of the parties' daughter.

The "best interest" determination included attendance at the local public school.  The child was ordered to progressively integrate into the public school curriculum, starting with three 5th grade classes.

Some readers will recognize this dynamic.  In his petition, Father alleged that due to the Mother's religious-based schooling, and through a complete immersion into Mother's church, daughter became withdrawn from Father's world (i.e. his new wife and child).  His officially stated fear was that his daughter was becoming isolated within Mother's home, and within her church, and this isolation was preventing her development.

For her part, Mother proclaimed that the additional contact between Father and daughter, and daughter's introduction into the public school system had a negative impact on the daughter, and that daughter (along with Mother) was suffering "extreme difficulty" with the court-ordered lifestyle modification.

In the end, the NH Supreme Court was not persuaded by Mother's high-flying, SCOTUS-citing First Amendment arguments.  The High Court ruled that it was the mandate of the family court to call the balls and strikes in this parenting dispute.

I, for one, feel very sorry for this now-confused little girl.  Not only is she being thrust, perhaps too late, into the main stream of our culture, she is also contending with her Father's new family; all within the context of her Mother's teachings, such as they are.

When parents have joint legal custody but cannot agree on basic issues of schooling and domicile, it is one of the saddest specters in the modern family court.

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The Cost of Free Speech

"For the past 20-years, the congregation of the Westboro Baptist Church has picketed military funerals to communicate its belief that God hates the United States for its tolerance of homosexuality, particularly in America's military."  So reads the first line of today's 8-1 SCOTUS decision in the Snyder v Phelps case.

By now, the story is familiar to all of us: Albert Snyder's son, Marine Lance Corporal Matthew Snyder, was killed in action in Iraq.  Nearby Corporal Matthew's funeral, members of the Westboro Baptist Church protested, with many members of the congregation carrying anti-gay and anti-america signs.

Albert Snyder sued in federal court (pursuant to diversity of citizenship jurisdiction - when each party is from a different state), claiming the intentional infliction of emotional distress.  A jury awarded Mr. Snyder over 12 million dollars.  The Eleventh Circuit Court of Appeals reversed the verdict on First Amendment grounds.

In affirming the 11th Circuit, the High Court stressed the particular set of facts, as developed by the parties to the dispute.  Key among those facts were that the church protesters advised the police of their planned protest in advance, and obeyed all the restrictions (i.e. staying 1000 feet away from the funeral) placed upon their gathering.

The lone dissenting justice, Samuel Alito, characterized the speech as a "vicious verbal assault" that did not merit First Amendment protection.

Only the hardened zealots among us would condone the disruption of the funerals of our nation's soldiers by protesting against gays in the military with such cheap attention-grabbing tactics.  Justice Oliver Wendell Holmes perhaps said it best:

If there is any principle of the Constitution that more imperatively calls for attachment than any other it is the principle of free thought – not free thought for those who agree with us but freedom for the thought we hate.

Chief Justice Roberts ultimately concluded, along with seven other justices, that the church members were legally allowed to be proximate to the funeral and say what they had to say.  The following excerpt from Roberts' decision perhaps best captures the spirit of Justice Holmes in the sanctity we place on freedom of speech:

Westboro believes that America is morally flawed; many Americans might feel the same about Westboro.  Westboro’s funeral picketing is certainly hurtful and its contribution to public discourse may be negligible….Speech is powerful.  It can stir people to action, move them to tears of both joy and sorrow, and– as it did here– inflict great pain.

Even particularly controversial, virulent and inflammatory free speech remains free; regardless of content.  In upholding the First Amendment in Snyder, the first case sited by Chief Justice Roberts was to the seminal case of Hustler Magazine, Inc vs Jerry Falwell.  That case, from the early 1970s, pitted the evangelical preacher against America's iconoclastic pornographer.

In order to be truly free, the content of our speech simply cannot be regulated by government.  There cannot be a "heckler's veto".

This case belongs to the progeny of the flag burning case from the 1990s and the Nazi march through Skokie, IL from the 1980s.  Each of those forms of controversial speech was protected back in its day; this is just the latest incarnation.

For the scholars among our readers, the oral arguments for this case are at this link.  Definately worth the hour to listen; you get a real feel as to the judicial persona of the various justices.

New Hampshire Supreme Court Reviews Family Court Decision on Home Schooling

Custody issues are almost always best-decided by parents outside the courthouse.  Sometimes, however, a school choice dispute drives post-divorce parents into the courtroom.

In a case percolating through New Hampshire, a family court judge endorsed a parenting plan between feuding parents that featured public school over home-schooling by the mother.  The case was argued before the New Hampshire Supreme Court last week with a decision expected soon.

Mother, Brenda Voydatch, claims a constitutional First Amendment right to direct her daughter's education in accord with her deeply-held religious beliefs.  Father, on the other hand, petitioned the family court for an order that his daughter attend public school.  The family court judge appointed a guardian ad litem for the child who recommended the switch to public school.

Father knows best; for now.

This case has been acquiring headlines while burning through the NH appellate courts.  The parents have already tested their respective positions on the school issue in a full-blown custody trial resulting in joint legal custody, with "physical custody" to the child's mother.

Mother attacked the family court's reliance on the so-called expert testimony of the GAL, an admitted non-expert in the comparative pedagogies sought by the parents.  Mother paid her lawyers to be troubled by the court's apparently exclusive reliance on his GAL; a sort-of "judge-in-the-field".

For their part, father's lawyers have scoffed at the notion that any constitutional issues are presented in the case at all. Father sees the family court's public school ruling as an example of tough decision-making; family court style.   His pleadings also assert that Mother has exhibited an excessive, Christian, religiosity in her curriculum that has impeded their children's socialization; read "secularization".

The dispute is certainly philosophical, if not constitutional.  Stay tuned per usual as we await the outcome of the case and report back to you.

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Dr. Dre Is In the House; The Michigan Supreme Courthouse

Honigman Miller's top-notch First Amendment lawyer, Herschel Fink, seems to get all the great cases; at least in my humble opinion.  Today, Fink argued on behalf of Rapper Dr. Dre before the Michigan Supreme Court while Dre's high-powered Los Angeles legal counsel was listening to Mr. Fink from the Court's well-appointed counsel's table.

This case has been up and down the court system here in Michigan for ten-years.

The dispute goes back to Dre's last Detroit concert in July 2000 at the Joe Louis Arena.  Dennis Archer was the Mayor, but was out of town.  Dre was on his infamous "Up in Smoke" tour along with Eminem and Snoop Dog.  The boys had cooked up a racy video deemed inappropriate by the Detroit Police for the youngsters expected to attend the show.

Police commander (and later City Council President) Gary Brown and other police officials met with Dre's concert promoters backstage prior to the show and advised that power to the show would be cut if the explicit video was shown.  After some haggling, and perhaps some arm twisting, the promoters talked the performers to go on with the show, sans intro. The exchanges were openly recorded by a tour film crew.

When the tour moved North the next day to the Palace of Auburn Hills, word had leaked to authorities in that community that the Detroit Police successfully canned the objectionable video intro by threatening to cut power to the event.  The tour went to federal court, that day, and obtained an injunction from U.S. District Court Judge Nancy Edmunds to prevent any interference with the show on behalf of the police.  The show at the Palace featured the explicit video introduction.

The tour left Michigan, and the promoters sued Detroit and settled for their attorney fees.  Former Mayor Archer issued a public statement that conceded the possibility of an unconstitutional "prior restraint" on behalf of the Detroit Police officers, and recognized the federal court injunction that was subsequently issued.

Six months later, Dre and his producers released a DVD of the tour with some bonus tracks which included a 10-minute segment titled, "Detroit Controversy".  This segment depicted some of the heated exchanges between Commander Brown, the DPD, City officials, and the tour promoters at the Joe.

The officers sued on eavesdropping and other tort theories and saw their case summarily tossed-out by the Wayne County Circuit Court.  The officers' first appeal to the Michigan Court of Appeals resulted in an affirmance of the summary disposition, except on the eavesdropping claim.  The intermediate appellate court said dismissal of that claim was premature as discovery had not been completed.

The case was sent back to the Wayne Circuit Court to complete the discovery process.  The additional evidence simply showed the Detroit government officials and police conducting the meeting in "public" areas backstage; doors open and hangers-on gawking.

Even after this so-called "additional evidence" was adduced and discovery finally closed, the Wayne Circuit Court again granted summary disposition in favor of Dr. Dre and the concert promoters; the case again was appealed by the officers to the Court of Appeals.

In a 2-1 decision, the Court of Appeals voted to again remand the eavesdropping claim back to the trial court.  Before the case could go back to the trial court for the second remand, however, the Michigan Supreme Court granted the promoters' application for leave to appeal.  Briefs were filed, and oral argument was conducted today.

The issue to be decided by the High Court is whether law enforcement officials have an expectation of privacy in carrying out their public duties.  Plaintiffs, the government officials and police officer, claim there was an agreement the meeting would be private and that the cameras were "hidden".  Also in-play in this case is the role of the ubiquitous video recorder and the instantaneous world-wide transmission potential of it's digitized content.

For those interested in drilling further into this case, Attorney Fink's appellate brief, complete with several instructive backstage photos, is reproduced here; the police officers' brief is attached here.  Warning:  although well-written, these briefs are not light reading.

We cannot help but wonder what the former Detroit Police commander and other public officials want out of this case.  Money damages from a deep-pocket gangsta rapper?  Exposure from such a high-profile case?

It sure seems to us from the photos in the Appellants' brief, and from the facts set forth by the Court of Appeals, that the core-incident in this case involved a very public meeting about the government's exercise of a "prior restraint".

We will follow this case as it grinds to a conclusion over a decade in the making.  Stay tuned.

U.S. Supreme Court Opens Term with New Justice & Interesting Docket

The United States Supreme Court (SCOTUS) opens it's 2010-2011 term Monday morning, October 4, 2010, with a new justice in its chamber, and one of the more politically charged dockets in recent times.

The SCOTUS bench will feature three sitting female justices for the first time in it's storied history.  Seems like just yesterday that President Obama installed Sonya Sotomayor on the bench.  On Monday, Elena Kagan takes the bench for the first time.

One of the more electrifying cases selected by the Court for argument this term is Snyder v Phelps.  This case addresses free-speech under the First Amendment in the context of protesters picketing near the funeral of a Marine killed in Iraq.

The father of the slain Marine from Maryland, Albert Snyder, won an $11 million jury verdict against the Westboro Baptist Church of Topeka, Kansas.  The case wound-up in federal court on the basis of diversity jurisdiction (all parties being from different states).  The verdict was reversed on appeal to the 4th Circuit on First Amendment grounds.

The Westboro Baptist Church, "practices a 'fire and brimstone' fundamentalist religious faith" according to the 4th Circuit.  The church asserts that God hates gays, and is punishing America for its tolerance of gays; particularly in the United States military.   Hence, the protests at military funerals.

The determined crusaders from the small mid-American church are mostly the family and friends of the church's founder and only pastor, Fred Phelps, Sr.  His daughter will be arguing before the SCOTUS on Wednesday.  Meanwhile, Mr. Snyder is represented by Craig Trebilcock, a University of Michigan Law School graduate whom I had the pleasure to know as a fraternity brother at the UM in the early 1980s.

Both positions in this case are supported by an impressive array of amicus briefs.  More than 40 U.S. Senators and the Veterans of Foreign Wars supported Petitioner Snyder with their briefs, while the ACLU and the NYT, among many others, filed briefs on behalf of Pastor Phelps and his lawyer daughter.

Other interesting cases include Schwarzenegger v Entertainment Merchants Association, also involving the First Amendment in the context of selling violent video games to minor children.  In another case from California, Schwarzenegger v Plata raises the issue of the horrible overcrowding of the penitentiaries which led a panel of federal judges to release nearly 40,000 inmates.

The LawBlogger will be tracking these cases and we will be providing updates in the weeks and months to come.

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SCOTUS Bruises First Amendment in "Terrorist Aid" Case

On Monday, I was scheduled for admission to the bar of the U.S. Supreme Court; a very formal proceeding.  So first thing Monday morning, I made my way past the security checkpoints of the storied courthouse on the far-side of the Hill, and into Room G-32 (they have an entire suite of offices devoted to bar admissions).

There were only four attorneys slated for individual admission on the Court's docket that day; the last day of the 2009-2010 term.  Good news for us admittees; the Court was issuing 4 opinions so the entire bench would be present for the admission ceremony.

In another piece of extraordinary luck, we were seated in the front row of the courtroom for the day's proceedings.  I actually had a better seat than Nina Totenberg from NPR and Bill Mears of CNN; both were present to hear the opinions read from the bench.

The high-point from that session was Chief Justice John Roberts reading the 6-3 majority opinion in the case of Humanitarian Law Project v Holder; followed by Justice Stephen Breyer reading his dissent (joined by Justices Ginsberg and Sotomayor).  Dissents rarely are read from the bench in the High Court's chamber; this one signaled a strong warning from the Court's liberal wing that the government had gone too far by criminalizing free speech in the name of national security.

This case (actually two cases) involved application of a 1996 federal law banning "material support" to known foreign terrorist organizations black-listed by the Secretary of State.  The terrorist groups in these cases were not Al Qaeda or the Taliban but rather, dissident groups from Turkey and Sri Lanka.

The actions sought to be criminalized in the Holder cases would ordinarily receive First Amendment protection as a form of "pure political speech".  For example, teaching members of the foreign groups how to petition bodies like the United Nations, or hiring an attorney to resolve disputes in a US courthouse.

The federal government has utilized the "material support" law as an effective courtroom weapon in our protracted war on terror.  Justice Roberts emphasized, however, that the Court's holding was narrow and did not criminalize pure speech; just conduct in aid of known terrorist groups.

Prior to Humanitarian Law Project, the Court's terrorist cases were limited to constitutional issues surrounding detainees.  This case, the only "terrorist" case to be decided this term, moved the terrorist jurisprudence outside the detention centers and into our streets; into the heart of our right to free speech.  In so doing, the High Court's decision in this case affects each and every one of us as free thinking individuals.

When the cases were argued before the Court back in February, it was Solicitor General Elena Kagan, subsequently nominated by President Obama to occupy a seat on that very Court, who vigorously defended the law and its effectiveness in combating terror here in the homeland.  She prevailed in the forum where, presumably in October, she will become a mainstay.

The Holder decision evidences the Court's traditional and continuing deference to the political branches (Congress and the Executive) in matters of national security.  In the 21st Century, perhaps like no other time in our history, national security matters are everywhere; even in our own backyards.

After the Holder opinions were read, the Chief Justice turned to the administrative motions of the day, calling my long-time college friend and fellow-attorney, Barak Romanek, to the podium to move for my admission.  Thankfully, his motion was granted and I was duly admitted to the bar of the SCOTUS with a friendly nod from the Chief Justice.

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Congress vs NCAA

As the holidays approach, college football fans once again work up their annual lather over how to end the season, and crown a national champion; or not.

Last year was controversial.  This year features two undefeated teams (Boise State and TCU) that have no chance of playing each other under the present Bowl Championship Series.  So now, our Congress is getting involved?

This week, Joe Barton, (R-Texas) introduced a bill that would proscribe the promotion, marketing, or advertising of any post-season Division I college football game as a "championship" unless it is the final game of a single-elimination tournament.  Good luck with that.

One criticism of the proposed legislation is that it may violate the First Amendment of the United States Constitution.  While commercial speech may be closely scrutinized to prohibit untruthful or misleading messages, regular speech has the full protection of the First Amendment.

Some of you may be wondering, what is the government interest protected by this proposed bill?  Should Congress be discussing and debating college football?  Will President Obama sign it into law?

Perhaps we should simply put this down as another fine "slice of life" in the workings of our Democracy.  Besides, the annual debate among professional sports writers over who's best in football adds spice to the holiday season.