Mirror of Justice

Religious Freedom, Copyright Royalties, and Court Review of Agency Determinations

The Religious Liberty Appellate Clinic at St. Thomas has filed an amicus brief supporting the petition for certiorari in a case involving copyright royalties and religious freedom--which also turns out to be important concerning meaningful judicial review of agency determinations that affect First Amendment and religious-freedom rights. The Copyright Royalty Board, the federal agency that sets statutory royalties for digital transmissions of copyrighted sound recordings, has charged noncommercial webcasters (mostly religious in nature) an 18-times higher rate than public-radio-affiliated (also noncommercial) webcasters. That severe disparity raises significant issues under the First Amendment and the Religious Freedom Restoration Act (RFRA). But the D.C. Circuit, in reviewing the Board, treated the case as essentially about mere review of an agency under the Administrative Procedure Act (APA) and gave significant administrative-law deference to the agency's key determination on whether the activities of religious webcasters were comparable to those of NPR webcasters and therefore should not face such a grossly disparate rate.

We argue that courts can't abdicate their responsibilities to protect religious freedom and other First Amendment rights in this way. We use foundational cases. issued over several decades, requiring independent appellate review in First Amendment and other constitutional cases: Bose Corp v. Consumers' Union. (1984), New York Times v. Sullivan (1964), and Crowell v. Benson (1932). And we argue, for example in this summary bit, that

The question in this case is recurring and important. Many claims under RFRA arise from decisions by federal agencies; many claims under the Free Exercise Clause arise from decisions by federal or state agencies. If courts apply administrative-law deference to agencies in deciding RFRA and First Amendment questions, the result will be to eviscerate those protections.

The brief is on behalf of the Christian Legal Society (CLS) and the National Association of Evangelicals. Thanks to the students who worked on the brief--Arianna Wiinamaki and Kris Thompson--and to Steve McFarland and Laura Nammo at CLS.

Mark Rienzi on the Transgender Cases at SCOTUS

Mark Rienzi (CUA and Becket) has shared with Mirror of Justice the following report and analysis:

Transgender cases hit SCOTUS

This week, the Supreme Court is set to consider several cases dealing with the hot-button topic of gender transitions for minors.  Although this has been a major political firestorm for the last couple of years, SCOTUS has largely stayed out of the fray.  The Bostock decision established the right for transgender employees to be free from certain types of discrimination on the job. The Court has so far avoided ruling on Title IX’s application to transgender students, dismissing one case as moot and waiting to weigh in on state laws requiring students to play on sports teams aligned to their natal sex, not current gender identity.

But sooner or later, the Court will have to weigh in on the limits of Bostock, as well as the national controversies over how far parents, schools, and doctors should go in supporting gender transitions for minors.

A trio of cases at Friday’s conference presents a surprising contrast in how state officials handle these issues.

First, the Solicitor General and a group of parents, represented by the ACLU, have asked the Court to consider challenges to laws banning medical transition procedures for minors. Tennessee and Kentucky (along with numerous other states) have banned such procedures, and the challenges to their laws have now reached the court. The A­­CLU has asked the Court to consider its parental rights argument. The SG has taken a different tack, asking the Court to focus on whether the bans violate the Equal Protection Clause as an impermissible sex-based classification.  The states have argued there is not yet a circuit split, citing the Eight Circuit’s pending en banc decision on a similar law in Arkansas. Whether the Court takes this set of cases or waits for a later opportunity, it seems inevitable that the nationwide controversy will eventually end up at SCOTUS.

A third petition raises a troubling question of parental rights in Indiana. Indiana is among the states that have banned such medical procedures for minors, but state officials nonetheless removed a teenager from his parents’ custody because they refused to use his preferred pronouns and agree to treat him as a girl. In M.C. and J.C. v. Indiana Dep’t of Child Services, Mary and Jeremy Cox have appealed the state’s decision to remove their teenage son from their home and place him in a home where “she is [ac]cepted for who she is.” The state refused to return the teen to his parents, even after an investigation showed that all allegations of abuse and neglect were unsubstantiated. The court pointed to an eating disorder and reasoned that, if the child were returned to his legally fit parents, he would experience distress due to the disagreement over gender. That was grounds to keep him out of his parents’ home until he turned 18.

The Coxes kept appealing, hoping their son might come home, but Indiana and its courts refused to return the child.  Now they have asked the Supreme Court to review their case, hoping to overturn a decision that could continue to have dire consequences for their family and put them at risk of further state intervention for their younger children. Our team at Becket is proud to represent them. But Indiana, confoundingly, continues to defend the decision. The state reasons that because it succeeded in keeping A.C. from his parents until he turned 18, his case is now moot. It’s a dangerous argument that would set a dangerous precedent nationwide: parents lose their legal recourse against state officials who take a teen away, since teens will soon reach the age of majority and their cases will be moot, too.

It’s not just Indiana. California and Minnesota have passed laws which allow state courts to take jurisdiction over minors for the purpose of allowing them to receive medical interventions for their transitions. Maine is considering a similar law. Washington state has passed a law that allows teens to effectively emancipate themselves by going to shelters which will help facilitate social and medical transitions—it’s then up to the state, not the parents, how long the teens can stay. The state doesn’t even have to notify the parents of the child’s whereabouts.

The Supreme Court will soon have to decide the rights of loving parents who don’t support a child’s desire to engage in a social or medical transition.  It should do so now, not years from now, when more families have been torn apart. And the Coxes’ case presents an unusually strong scenario: the state admits the parents are fit, so there are no overlapping issues about state law on abuse. The fact that A.C. has turned 18 makes the case an especially clean vehicle—there is no danger of changed circumstances once the Court grants cert. 

These disturbing cases will only continue to multiply until, and unless, parental rights are established. Loving families should not have their children removed because the parents disagree with state officials about gender.

Notre Dame Religious Liberty essay contest

The Program on Church, State & Society at Notre Dame Law School is pleased to announce its annual writing competition on topics and questions within the Program’s focus. This writing competition requests student-authored scholarly papers and will honor winners with cash awards. The purpose of this writing competition is to encourage scholarship related to the intersections of church, state & society and, in particular, how the law structures and governs them.

More info here.

Sub Deo Ep. 2: In Which We Discuss the Alabama Supreme Court IVF Ruling With a Colleague

That colleague is Prof. Elizabeth Kirk, a family law expert. Kevin, Elizabeth, and I tackle statutory interpretation, tort law, family law, and law and religion (this was recorded before the Alabama state legislature took action in proposing new legislation, but don't miss Kevin's smart prognostication on this front). Have a listen!

"The Death and New Life of Law and Religion"

I've posted a new paper, The Death and New Life of Law and Religion. The draft reflects on the history of the field in the United States and its present condition in what, it argues, is a moment of transition for it. Here is the abstract.

The year 2023 was an end and a beginning. It saw the passing or retirement of many giants in the field of law and religion—scholars who brought their formidable erudition and insight to bear on questions that transcended legal doctrine, venturing upward into the heady realms of political theory, philosophy, history, sociology, and theology.

These and other recent departures from the active world of law and religion are an occasion to reflect on the state of the field. This paper begins with a brief history of the field, highlighting the questions that motivated it to emerge in the 1970s and 1980s and the intellectual currents and legal developments against which it was reacting. It then argues that some of the central concerns and inquiries that occupied law and religion as a discrete field of academic study in what it calls the first wave heyday are now at an end. These include the nature of religion and the secular in the law, the division between these concepts, and the implications for law and religion as an independent academic discipline; the concept of state neutrality as to religion and the connected public-private divide as respects what is religious and what is non-religiously political; and the regime of religious exemption for everyone with a sincere objection to a law as the central feature of religious free exercise, in constitutional and statutory law.

This paper argues that these are now, or will soon become, dead issues. Of course, they may well continue to be important for lawyers making and opposing claims in litigation, and for judges deciding among them, since the operative textual and doctrinal categories relevant to such claims will continue to depend on clever argumentation concerning some or all of them. And scholars will, no doubt, continue to wrangle over them. But to the extent that they continue define the field or remain its signature issues, their growing irrelevance signals its death. Intellectual enterprises that survive over generations learn to adapt, and law and religion will need to do so as well. And, in fact, different issues, based on different premises and cultural circumstances, are beginning to emerge that may come to dominate the field and give it new life: the nature of political establishments and how they change; the use of ‘religion’ as a term for a category of political or ideological identity either to re-entrench or subvert political establishment; and the limits of what so-called religious dissenters (who are now, and in large measure thanks to the first wave, indistinguishable from political or ideological dissenters) from the political establishment may reasonably expect in the way of accommodation from it. If the field is to survive, it will need to reorient itself toward new problems that afflict a very different world from the one in which it came into being.

"Sub Deo et Lege": A New Podcast About Law and Learning Under God

Kevin Walsh and I are delighted to announce our new podcast, Sub Deo et Lege.

For an explanation of what the podcast will be about...well, you should listen to the first episode, "In Which We Explain Why We Are Here." More to come soon!