It appears April is free speech month for the Supreme Court. Two important free speech cases are going before the Court this month and they could have a large impact on your rights to both religious and political speech. Here is a basic overview of what the cases are and what they might mean.
Christian Legal Society v. Martinez
The first case, Christian Legal Society v. Martinez, arose in 2004 when a chapter of the Christian Legal Society (CLS) attempted to register as an official student organization at the University of California’s Hastings College of Law and were denied under the law school’s non-discrimination policy. CLS requires voting members and those in leadership positions in the organization to be Christians and to abide by certain Christian standards. As a result, the group effectively “discriminates” against non-Christians and practicing homosexuals.
When denied approval, CLS then sued the school arguing that the school’s policy violated their First amendment right to free speech, assembly, and exercise of religion. In 2006, a district court ruled in favor of Hastings and in 2009 the 9th Circuit Court of Appeals affirmed the ruling. The case will now be heard by the Supreme Court on April 19.
According to Pew Research Center, if the Supreme Court rules in favor of Hastings, the impact would be minimal outside of school contexts. However, if the court were to rule in favor of CLS, the impact could be much broader:
“If, however, the court finds that the non-discrimination rules impermissibly burden CLS’s rights, then the decision could have a broad impact that extends beyond educational institutions. Not only would this ruling protect the right of religiously-based groups, like the Christian Legal Society, to receive support at places like Hastings, it might also allow groups that discriminate based on other criteria, such as race or gender, to gain equal access to public forums. Furthermore, if the court extends the reach of this decision to all government funded programs (as opposed to only those, like the one at Hastings, that concern public forums for speech) then its potential impact would be very significant. Such a ruling could lead to dramatic changes in this area of law by inviting courts to scrutinize much more thoroughly the conditions that accompany government aid programs, ranging from public welfare funding to higher education scholarships.”
If you are interested, you can visit the Pew Research Center for a complete breakdown of the history and possible impact of the case.
Doe v. Reed
This second case is even more politically charged dealing directly with homosexual marriage and the bounds of political speech. Doe v. Reed concerns Referendum 71, the Washington state ballot initiative that sought to overturn a bill providing domestic partnerships all the rights of legally married couples. If you remember, after the Washington legislature approved the bill last year, Protect Marriage Washington started a petition effort to get the bill on the ballot for public vote. Protect Marriage Washington got the requisite signatures and the issue went on the ballot last November as Referendum 71. Unfortunately, the bill was approved.
During this period, several groups tried to access the Referendum 71 petitions, which were signed by those opposed to the bill expanding domestic partnerships. When it was announced the names would be released according to government transparency laws, some of the signers sued and won a temporary stay on the release. They argued that releasing the petitions violated their right to anonymous political speech and would subject them to harassment.
The U.S. Court of Appeals for the 9th Circuit then overturned the district court’s decision arguing a petition does not qualify as anonymous political speech, as it is a public document. Now, the case is on to the Supreme Court on April 28.
The case should be an interesting one to follow as it pits the right to anonymous political speech against the right to access government records. Additionally, if the Supreme Court upholds the 9th Circuit’s decision, the ruling could have a huge impact on future pro-family petition efforts, as these emotionally charged issues will always expose signers to unwanted persecution.