As I have said in other threads, the big problem is the supposed legal tests that answer nothing. Strict scrutiny, compelling state interest, sincerely held religious belief, reasonable accommodation, de minimis exception, and so forth.
At bottom, the judge is going to first have to use his or her subjective beliefs to determine how compelling the state interests are here. You have a range of opinion from its devastatingly important down to it is a bunch of hooey.
Then you have to look at the religious interests. Some posters in this thread have said that they put near zero stock in that side of the balance, and even someone like me who thinks that religion is important, and understands the old ways of thinking, still doesn’t see how calling biological male born with the name John who wishes to be called Janie somehow somehow puts you in danger of hellfire. You aren’t in your home or in church, or even counseling the child privately. You are acting as a agent of the government that has made a decision to call the child Janie.
But that is just me. Who am I to say what constitutes a “good” religion? I’m not a theologian. And who am I to say that promoting transgender status is a “compelling” interest? I don’t know any more about that than any poster in this thread, and a judge’s experience and law school degree doesn’t give the judge any special insight into these issues.
Any decision that is rendered will be based on the judge that is drawn, and that is bad for the law.
Do you have a solution to these issues? It seems to me that you’re more upset at the reality of the world not being one-size-fit-all than at any particular outcome.
Sure, but when it is just a judge’s subjective opinion, one that a plumber or a dentist has equal claim to and not based on any principle of law, then that is a problem with the law, not just that it is “messy.”
One issue I have is that this doesn’t seem to be First Amendment issue at all. As noted by posters above, the First Amendment is under the Smith test, written by Scalia and all but forecloses the teacher’s claim. The RFRA does not apply to the states, however KS has a similar law. So why is this in federal court and why is she claiming a denial of a constitutional right when her only objection seems to be a statutory one?
Because conservatives have made it a hobby of throwing case after case at the courts until something sticks. They also get to perpetuate the notion that they, as a group, are the oppressed ones. It is the evil liberals making rules that prevent them from just living life as they see fit.
They have particularly latched on to “religious freedom” as a catch-all for their bigotry. They can apply it to almost anything.
Nuance is lost on them but it is good to generate outrage and fundraise.
I don’t dispute that, but you are excluding the middle. The malleable tests give the subjective opinions a veneer of authority, a grand principle derived from Blackstone or Madison, when the same result is reached without these dueling case cites. If you tell me the judge’s name and the President who appointed him/her, I’ll tell you the outcome, subject to a reversal by a 2-1 from the judges and the President who appointed them on the Court of Appeals–drawn at random.
I agree with you that this religious freedom idea has gone too far. But to blame conservatives for using the courts to create policy?!? It would only be because we’ve watched your side do it for the last 80 years and are finally catching up.
For one thing, because liberals admit that judges should be making judgements, while conservatives pretend that they’re supposed to be “originalists” or “textualists”, whatever those mean.
I don’t call those judgments or at least not ones that judge’s are especially qualified to render. You have an opinion on this and so do I. Does my law degree give me special insight on how important or not that religion or transgender rights are–compared with another? Does my law degree give me better insight than you to say that the school’s interest is “compelling” instead of simply “good” or even “bad”? I submit that it does not and if law is going to be like that, then maybe we just give up all pretense that this is law we are talking about and just leave it to the Legislature or Congress. At least that has the benefit of being democratic instead of the winner being chosen by the draw of the judge.
Again I’ll ask: Do you have a solution? SCOTUS sets vague, general principles (3 different levels of testing), and lower courts make rulings on individual cases. Kinda like the Constitution sets vague, general principles (“cruel and unusual”/“due process”) and legislatures/courts/executives make individual laws/rulings.
Judges, on the whole, also tend to be much better than plumbers and dentists at the much needed comparison/analogizing/analyzing necessary to reach a decision based on the totality of relevant caselaw. But that’s a whole 'nother barrell of apples.
Because of cases like Hobby Lobby and Masterpiece Cake Shop (and the upcoming 303 Creative case). That’s how caselaw develops. Conservatives have now weaponized the free exercise clause to allow them to avoid dismissals that would have been granted under Smith.
More of a federal jurisdiction issue, but she’s alleging 7 separate Section 1983 violations, so it’s in federal court.
Hobby Lobby wasn’t decided under the Free Exercise clause but the Federal RFPA. It was a statutory case because the feds, under the ACA, were requiring Hobby Lobby to provide contraception in its company health plan. In Masterpiece Cake, it was a free speech issue. The state was requiring a private person, not its employee, to make speech he disagreed with. This is different.
Interesting, and thank you. I would dismiss the complaint. First, she argues that the policy fails the Smith test because it is not neutral and generally applicable as it is only enacted to harm a particular religion: conservative Christianity. The State would almost unassailably respond that it isn’t trying to harm Christianity but to protect transgender students from ridicule or harm. Nobody, Christian, Muslim, Jew, or atheist can misgender a student. The fact that it offends her blend of Christianity is on all fours with the Smith case because that case prohibited everyone from smoking peyote, even if it infringed on some religious belief. She has failed to state a freedom of religion claim.
She next raises a free speech claim, but that is neatly tied into the Pickering line of cases where government as employer can curtail its employees’ speech if it interferes with their mission. And the people of Kansas, through the employees in charge, can say that their mission is to protect transgender students.
The due process argument may have some weight if she was retroactively punished, but she has not made the claim, but repudiates it, that she will now comply since she knows about the policy. She states that she wishes to continue to flout the new policy.
Perhaps she has a state law claim under the KS version of the RFRA, but I don’t see a federal issue.
“The freedoms asserted here are both the freedom of speech and the free exercise of religion.”
“Given all these considerations, it is proper to hold that whatever the outcome of some future controversy involving facts similar to these, the Commission’s actions here violated the Free Exercise Clause; and its order must be set aside.”
“On these facts, the Court must draw the inference that Phillips’ religious objection was not considered with the neutrality that the Free Exercise Clause requires.”
“The official expressions of hostility to religion in some of the commissioners’ comments—comments that were not disavowed at the Commission or by the State at any point in the proceedings that led to affirmance of the order—were inconsistent with
what the Free Exercise Clause requires.”
If you’re going to cut and paste my posts, ignore large swathes of them, and not even attempt to answer my good faith questions, could you please at least be more accurate in your assertions. Thanks.
That was the ruling in Masterpiece Cake that by all accounts punted the issue simply because the authorities were mean to the guy, and got a decision which solved nothing ('whatever the outcome of some future controversy involving facts similar to these"). The Free Exercise question is meaningless; so go back and don’t be so mean and disparaging towards religion and the problem is solved, then we will solve the real free speech issue.
The substantive issue that was not decided, but was briefed extensively and discussed thoroughly on these boards and elsewhere was the free speech issue.
I’m not sure why you have the hostility towards me here. I only quoted the portions I wished to reply to. I don’t think I changed the crux of what you were saying by not discussing different issues.
You simply ad hominem and wave hands rather than debate, you throw a hissy fit and leave the board, you are factually incorrect about caselaw, you ignore questions, you apparently don’t know what 1983 actions are, and you somehow you are confused as to why you perceive hostility to your “arguments”?
Modnote: And this is an excellent example of attacking the poster and not the post. Fine for the Pit, but not for anywhere else on the board. Please don’t do this again.
Your arguments are simply ad hominems and hand-waving, rather than debate, your arguments throw a hissy fit and leave the board, your arguments are factually incorrect about caselaw, your arguments ignore questions, your arguments are devoid of knowledge about what 1983 actions are, and you somehow you are confused as to why you perceive hostility to your “arguments”?
Fundamentally she can believe what she wants, but the conditions of her employment are that she has to use whatever name the kid goes by.
I guess I draw the religious distinction at the point at which it’s not directly impacting YOU w.r.t. the exercise of your religion. A Sikh ought to be able to wear his kirpan at work- that’s a religious commandment. But calling a kid by whatever name they choose isn’t restricting the exercise of anyone’s religion- she’s free to do that all she likes. She just can’t extend it to how she treats someone else.
I wonder if likening this back to the baker case has any merit.
It has been ruled that, as the owner of a bakery, you may use religion to excuse bigotry in serving clients. I disagree with that, but that seems to be the way of it.
However, do employees get the same protections? If you own a bakery, and one of your pastry chefs refuses to make a cake for a SSM, is that grounds for termination with cause? I would say yes. (Of course, I would have said it was wrong for the owner to refuse as well, so my judgement may not be in line with current jurisprudence.)
So, I would think that she should be required to abide by the rules of the school district, or lose her job.
However, in flipping this, I’m not sure I like some of the possible implications. Say a school district says that teachers are required to refer to students based on the genitals they were born with. Could/should a teacher be fired for referring to a student that was born with a penis, but presents as female, as a “she”?
I’m not sure it’s the teacher’s battle to fight in that case; it’s the parents vs. the school district. There’s not a religious angle to the teacher’s desire to use the kid’s preferred name or pronoun, so it’s just a case of not wanting to comply with the employer’s regulations.
I don’t think the teacher has an obligation to stay quiet about it though; they should absolutely call out the district for intolerance, etc…
