Daily Archives: July 23, 2022

The end of the past Supreme Court term saw the release of three decisions that carry life-and-death consequences: Dobbs v. Jackson Womens Health, which overturned Roe v. Wade; New York State Rifle & Pistol Association v. Bruen, which rejected efforts to curb gun violence; and West Virginia v. E.P.A., which curtailed the federal agencys ability to protect the environment. A fourth major decision of those final weeks may not hold life in the balance, but it will have radical and far-reaching consequences for the First Amendment and religious speech.

The decision in Kennedy v. Bremerton School District, written by Justice Neil Gorsuch, holds that a public-high-school football coach has a constitutional right to publicly pray at the fifty-yard line after games. Using the words quiet or quietly ten times to describe the coachs prayers, Gorsuch dismisses any concerns that students may feel coerced to join him, as long as they are not expressly compelled to do so. The coachs conduct, Gorsuch finds, in an opinion joined by Justices John Roberts, Clarence Thomas, Samuel Alito, Brett Kavanaugh, and Amy Coney Barrett, is fully protected by the First Amendment.

The First Amendment, of course, states: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. The establishment clause, which was cited by the school district, has traditionally been interpreted to prohibit government action that compels religious conduct, favors one religion over another, or endorses religion over non-religion. But Justice Gorsuch makes the astonishing claim that, because prayer is protected by both the speech and the free exercise references, it is doubly protected. This double protection means that the School Districts concern that the coachs prayers run afoul of the establishment clause is outgunned, two clauses against one. Does this mean that if I (1) petition the government to (2) hold a rally supporting the (3) printing of a pamphlet about my (4) new religion, Id be quadruply protected and could thereby trump other constitutional provisions, such as the equal protection clause of the FourteenthAmendment? The math quickly becomes absurd.

Burt Neuborne, a professor at New York Universitys School of Law, makes the compelling argument that the structure of the First Amendment is no accident. It is not a mere list of protected activities to be added to and subtracted from one another; rather, its language tracks how political ideas move from internal thought and belief to external conduct. First comes personal conviction, then public discussion and dissemination, and, finally, political action. The goal is the free expression of political will, which is essential to a functioning democracy. Neubornes analysis confirms what many media and First Amendment lawyers consider a truism: political speech is at the core of the First Amendments protections.

Protecting political speech, including speech that criticizes government officials, was the primary justification in the Supreme Courts unanimous landmark 1964 decision in New York Times Co. v. Sullivan, which holds that government officials need to meet a very high burden of proof to succeed in defamation claims. In that decision, Justice William Brennan reasoned that, because political speech is central to democracy, debate on public issues should be uninhibited, robust and wide-open. According to Justice Gorsuchs opinion, however, that long-held understanding of the central purpose of the First Amendment is wrong. In his view, it is government suppression of religious speech that is the core concern of the First Amendment, and what it was designed to protect against. Further, Gorsuchs finding that religious speech is doubly protected implies that political speechsay, about voting rights or womens rightsis only single protected.

This reasoning reveals a disturbing strain of thought: the idea that religion is under siege, and that religious speech and religious conduct in the public sphere need to be privileged. Gorsuch, in his opinion, inveighs against a government being hostile to religion. He specifically objects to the idea that we might preference secular activity over outward displays of religiosity. Instead of considering how secularism might make government activity neutral, open to believers of various faiths as well as nonbelievers, his thinking seems to be that, because of religious speechs double protection, it must take precedence. Anything less is an unconstitutional assault on religion.

Gorsuch employs the cartoonishly circular argument that, because the Bremerton School District, in Washington State, didnt want the coach to conduct prayers with his team, it clearly does not see that behavior as part of his official duties and, therefore, his praying is private religious conduct, which must be protected from government restrictions. By that logic, any religious conduct by government employees that is not part of their official dutiesa D.M.V. clerk, say, who gives out religious literature to people applying for drivers licenses, or a clerk who tries to convince gay couples that their marriage is sinfulwould become protected speech.

Gorsuch argues that, if visible religious conduct of government employees is banished, then teachers will be prohibited from wearing yarmulkes or saying a prayer of thanks over a sandwich in the break room. The fact that theres no evidence that any government office has sought to stop an employee from saying grace over their own lunch notwithstanding, that argument is a false equivalence. Such personal conduct is worlds apart from that of a coach, who may be responsible for making college or scholarship recommendations for the students on his team, openly conducting a religious practice on the field, while players and families are watching. Gorsuch writes that there was no coercion, because students were not required to participate. (Justice Sonia Sotomayor, in a dissent, included multiple photographs showing the coach kneeling in prayer surrounded by players that are evocative of a revival meeting. Even if those students willingly joined their coach in prayer, its likely that some students feigned belief, or felt excluded by choosing not to join the ritual.) Furthermore, the law recognizes all kinds of situations in which implied promises or threats are sufficient grounds for legal sanctions. Ask any first-year prosecutor whether an explicit threat is necessary to bring an extortion charge.

But religious maximalism is currently all the rage on the Supreme Court. Justice Alitos opinion overturning Roe goes out of its way to dig up arcane historical references to prove that the drafters of the Constitution didnt intend to protect abortion. But there is an inescapable sense that the Justices acceptance of the validity of the belief that life begins at conception is determined by his personal religious views. Alito, too, has publicly bemoaned hostility toward religion, which he calls secular orthodoxy, and blamed it for what he calls anti-Catholic prejudice. Justice Barrett and her family have been affiliated with People of Praise, an insular conservative Catholic group that rejects homosexuality; practices ecstatic Christian traditions, such as speaking in tongues; and is described as a covenant community. She testified during her Senate confirmation hearing that her religious beliefs do not influence her jurisprudence, but also that she did not view Roe as a super precedent. Clearly, most Justices have religious beliefs, and there are both liberal and conservative Catholicsno one should say that religious beliefs determine political affiliation. Still, the idea that religious speech (and necessarily, activity) must be protected over and above other kinds of speechor over secularism generallyis grounded in a belief about the importance of religion in public life. But what will happen if government employees must be free to express and act upon their religious convictions in their jobs? How does a pluralist society function in that case?

Chief Justice John Roberts famously bristled at the idea that there are Obama judges or Trump judges, insisting that members of the federal judiciary do their level best to be fair to those who appear before them. (When I was in law school, there was no quicker way to get cut down by a professor than to cite the Justices political leanings as an explanation for why they had reached a particular decision.) But perhaps a clearer distinction exists between Justices who believe that the constitutional guarantee of free exercise of religion means that government employees must be able to wield their religious beliefs unconstrained, and those who believe that, in a pluralist society, people have the right not to have the religion of others foisted upon them by government employees. As the old saying goes, Your right to swing your arms stops where my nose begins. Telling government employees to stop swinging their religion at the public should not be unconstitutional.

The rest is here:
Justice Neil Gorsuchs Radical Reinterpretation of the First Amendment - The New Yorker

In yesterday's decision in Doe v. Dordt Univ., Judge C.J. Williams (N.D. Iowa) allowed much of Doe's unfair-Title-IX-discipline claim to go forward; the decision is long, but here's an excerpt to give the flavor of the dispute:

First, a reasonable jury could find that the undisputed evidence shows an articulable doubt as to the accuracy of proceeding's outcome based on the finding of sexual assault. "Courts should not second guess the disciplinary decisions that school administrators make." But Title IX precludes school administrators from rooting those disciplinary decisions in a gender-biased policies and procedures.

It is undisputed that A.D., a witness in Doe's proceeding, told Dean Taylor that she had been "made aware of the fact that [S.S.]," another witness, "ha[d] been blackmailing [another witness] involved in the investigation" and asked to meet with Dean Taylor. Doe also shared with investigators, including Dean Taylor, that he thought S.S. had an agenda against him and had instructed J.B. not to speak with him.

Doe stated that J.B. told him that S.S. threatened to report J.B.'s marijuana use if he did not testify against Doe in the Title IX investigation. Dean Taylor was also aware that S.S. had convinced J.B. to participate in the investigation after he initially did not want to.

Nevertheless, based on the undisputed evidence, the allegations of blackmail were not prioritized. Dean Taylor did not appear concerned with the blackmail reports, though he stated that blackmail might mean an innocent respondent, and did not recall taking any further steps to investigate the blackmail issue after the meeting with A.D. Further, the information about Doe's and A.D.'s disclosures were not included in the Investigative Summary or otherwise shared with the SLC for their consideration during deliberation. Additionally, because the investigators did not investigate the blackmail allegations and report their findings, Coordinator Wilson could not consider this information or mention it in his recommendations to the SLC.

Defendants argue that S.S.'s alleged blackmail was inconsequential to Doe's investigation and proceedings because S.S. only wanted J.B. to tell the truth. Defendants also argue that S.S. wanted Doe to be punished for his alcohol use. Given that S.S. gave the initial report that Doe sexually assaulted Roe, however, it is apparent that she knew his discipline would, at least possibly, be for violations other than alcohol. And because investigators did not mention the blackmail reports in the Investigative Summary, the SLC was not provided with reasons to believe that S.S. only wanted J.B. to tell the truth. Further, the SLC did not have the opportunity to ask Doe or anyone else about the blackmail. Although defendants argue that plaintiff has no evidence that S.S. pressured J.B. to lie to investigators, a reasonable jury could find that the very nature of blackmail implies that the person being blackmailed must do something the blackmailer wants or face negative consequences and that the circumstances thus call the accuracy of the investigation and Doe's discipline into question.

This fact is particularly troublesome in light of the undisputed fact that J.B. was the last person to see Doe and Roe before their sexual encounter and, thus, had key insight into Roe's level of intoxication. A reasonable jury could further find that a blackmailed party, faced with these negative consequences, might have a motive to state what the blackmailer wanted him to say, whether that statement was true, partially true, or entirely false.

Thus, a reasonable jury could find S.S.'s alleged blackmail of J.B. caused J.B. to possibly have a motive to lie during Doe's proceedings and that the SLC's inability to review this information creates an articulable doubt as to the accuracy of the proceeding's outcome.

Further, although defendants argue it is merely speculative that Roe had a motive to lie, the jury could reasonably infer from the undisputed facts that Roe possessed such a motive. According to the Handbook, violations of the sexual misconduct policy could constitute grounds for dismissal.

The Handbook also made it a conduct violation for students under the age of 21 to consume alcohol, meaning Roe could face discipline for her underage alcohol consumption in addition to sexual misconduct if the encounter was consensual. But it also provided amnesty for an alcohol violation for any student making a good faith report of sexual misconduct, whether as a student with a complaint or a witness.

It is also undisputed Roe did not initially believe she was raped, and did not report her rape, though she did proceed with the investigation as the reporting party. According to the Handbook's provisions, however, had she not reported or shared information about the sexual assault, she would be at risk for a misconduct violation that could get her dismissed from Dordt.

A reasonable jury could also find particular procedural flaws call into question the accuracy of Doe's sexual assault finding. For instance, Dean Taylor testified that Dordt's policies did not distinguish between inebriation, intoxication, and incapacitation, although Roe's alleged incapacity due to her consumption of alcohol was the only enumerated reason that would render her verbal consent invalid. Relevant factors to incapacity, including food consumption, intake of non-alcoholic fluids, timeline of consumption, and body weight, were also not considered during the process.

Additionally, several conflicts of interest were either not discussed at all or not shared with the SLC. Dean Taylor, who would become a lead investigator in Doe's case, informed Mark Volkers, who taught Roe, that Roe had been involved in a "traumatic incident" before Volkers was named as a member of Doe's SLC. During Roe's first interview, Dean Taylor believed he was serving in capacity as dean, making him Roe's caretaker, even though this interview was part of the active investigation in which Dean Taylor was an investigator.

Finally, S.S. was Chair Olson's student. Before S.S.'s former interview, S.S. and Chair Olson had a "vague" conversation about Roe's assault and the allegations against Doe, a conversation Chair Olson told S.S. was best not to mention at her formal interview. Considering S.S. was the student A.D. and Doe believed was blackmailing J.B., a reasonable jury could find Chair Olson's failure to disclose her relationship with S.S., this conversation, and her suggestion to not mention the conversation, were procedural conflicts and concerns that further call into question the accuracy of Doe's sexual assault finding.

In sum, the undisputed evidence could support a jury finding of articulable doubt as to the accuracy of the outcome of Doe's Title IX proceeding based on the finding of sexual assault.

[A] reasonable jury could find that the undisputed evidence shows particular circumstances showing gender bias were a motivating factor in the erroneous outcome.

And here's the court's reaction to the university's First Amendment defense:

Defendants cite the recent Supreme Court case Our Lady of Guadalupe Sch. v. Morrissey-Berru (2020), for the principle that First Amendment insulates Dordt from incurring liability for discrimination when that alleged discrimination is founded on the university's religious beliefs and corresponding practices and policies.

The Court finds Our Lady of Guadalupe is inapposite to the case at issue here. There, the issue was employment discrimination and whether the teachers in question could be considered ministers for purposes of the ministerial exception to the First Amendment. The ministerial exception provides that "courts are bound to stay out of employment disputes involving those holding certain important positions with churches and other religious institutions." Here, the issue is sexual discrimination based on student disciplinenot an employment dispute. Thus, the Court declines to find that Our Lady of Guadalupe shields defendants from liability as to its discrimination of Doe.

Congratulations to Adrienne Levy, Andrew Miltenberg, and Stuart Bernstein of Nesenoff & Miltenberg LLP, and to David Goldman of Babich Goldman, PC, who represented plaintiff.

More here:
Title IX, First Amendment, Religious Universities, and Alleged Blackmail - Reason

from the you-can-protect-children-without-infringing-on-the-1st-amendment dept

California has officially joined the growing list of states attempting to regulate how social media companies run their platforms. The states proposed legislation, however, faces a major legal obstacle: the Constitution.

California lawmakers are marching ahead with AB 2408, the Social Media Platform Duty to Children Act. On June 28, the Judiciary Committee unanimously passed an amended version of the bill, tweaking several provisions. Next, AB 2408 must pass the Senate Appropriations Committee and the California Senate before governor Gavin Newsom may sign the bill into law.

AB 2408 would impose a duty on social media platforms to avoid addicting minor users. Although protecting minors is a noble cause, regulating how social media design their services likely violates the First Amendment, which protects platforms right to curate content based on their editorial discretion.

As with most bills, the devils in the details. AB 2408s structure and prohibitions would limit platforms abilities to arrange and moderate content for minors.

AB 2408 defines Addict as the act of knowingly or negligently caus[ing] addiction through any act or omission. The bill defines Addiction as use of one or more social media platforms resulting in preoccupation or obsession with, or withdrawal or difficulty to cease or reduce use in addition to physical, mental, emotional, developmental, or material harms to the user.

The bill allows the Attorney General to sue social media platforms for implementing a design, feature, or affordance which leads to addiction. To prevail under AB 2408, a plaintiff must prove that a minor became addicted and was therefore harmed, that a design or feature on the platform was a substantial factor in the addiction, and that it was reasonably foreseeable that the design or feature would lead to addiction.

A recent amendment removed a private right of action which would have allowed minor users and parents to sue platforms directly. Lawmakers also changed the definition of social media platform. The amendments, however, do little to change the bills constitutionality.

In short, AB 2408 aims to prohibit social media platforms from building features which the platforms know, or ought to know, will result in addiction for minors.

In general, social media platforms design features to make their platforms more useful or enjoyable. For example, any internet platform worth its salt uses algorithms to display, recommend, and tailor content based on a users browsing activity and interests. By restricting how social media companies build and use these features, AB 2408 interferes with their editorial discretion by limiting how platforms display and amplify content.

AB 2408 appears less objectionable than the social media regulations currently brewing in Texas and Florida, which are geared towards forcing platforms to host conservative content. Ultimately, however, all three bills seek to regulate how social media platforms moderate content. Its unlikely these bills withstand First Amendment challenges.

Texass and Floridas social media bills are already running into trouble in court. On May 31, the Supreme Court suspended Texass HB20, reimposing a preliminary injunction on enforcement of the legislation.

Just eight days earlier, the U.S.federal Court of Appeals for the Eleventh Circuit held that Floridas social media bill violates the First Amendment. Circuit Judge Kevin Newsom explained: Put simply, with minor exceptions, the government cant tell a private person or entity what to say or how to say it.

The court concluded that social media platforms content-moderation decisions constitute protected exercises of editorial judgment, and that the provisions of the new Florida law that restrict large platforms ability to engage in content moderation unconstitutionally burden that prerogative.

Proponents of AB 2408 argue that the bill only regulates business conduct, not speech. But limiting platforms abilities to build features used to display content implicates their constitutionally protected editorial judgment.

In Reno v. ACLU, the Supreme Court applied the First Amendment to the Internet, striking down provisions of the 1996 Communications Decency Act which criminalized the intentional transmission of obscene or indecent messages and information depicting or describing sexual or excretory activities or organs in an offensive manner. The Court found no basis for qualifying the level of First Amendment scrutiny that should be applied to the Internet.

Twenty years earlier, in Miami Herald v. Tornillo, the Supreme Court held that the government cannot regulate a newspapers choice of material or the decisions made as to limitations on the size and content of the paper.

Social media features designed to display content to users are analogous to newspaper editors dictating the size and content of their paper. Just as it protects newspapers, the First Amendment likely limits Californias authority to punish Internet platforms for their editorial decisions related to displaying and arranging content on their services. Consequently, AB 2408 faces the same First Amendment roadblocks as the Texas and Florida bills.

Protecting children is important. Thats undeniably true. Lawmakers, however, must pursue these policy objectives within the confines of the Constitution.

Andy Jung is a Legal Fellow at TechFreedom, a non-profit, non-partisan think tank focused on technology law and policy. Andy received his law degree from Antonin Scalia Law School in Arlington, VA. Before law school, Andy worked for software startup companies in California.

Filed Under: 1st amendment, ab 2408, addiction, california, content moderation, for the children, protect the children, social media

Continued here:
California's Social Media Bill Flies In The Face Of The First Amendment - Techdirt

In November 2020, a 2-1 Eleventh Circuit panel decision inOtto v. City of Boca Ratonconcluded:

Boca Raton and Palm Beach County prohibit therapists from engaging in counseling or any therapy with a goal of changing a minor's sexual orientation, reducing a minor's sexual or romantic attractions (at least to others of the same gender or sex), or changing a minor's gender identity or expressionthough support and assistance to a person undergoing gender transition is specifically permitted. These restrictions apply even to purely speech-based therapy. We understand and appreciate that the therapy is highly controversial. But the First Amendment has no carveout for controversial speech. We hold that the challenged ordinances violate the First Amendment because they are content-based regulations of speech that cannot survive strict scrutiny.

(See Jonathan Adler's post on the case.) Today, the Eleventh Circuit denied en banc rehearing, with several judges writing to concur or to dissent on that point; I'm slammed right now and can't quickly summarize or excerpt the opinions (which take up 110 pages), but I thought I'd link to them for the benefit of readers who are interested in looking through them.

Original post:
Eleventh Circuit Opinions on the First Amendment and Bans on "Conversion Therapy" for Minors - Reason

Editors note: A previous version of this story described Amber Krabach as being sympathetic to QAnon. Krabach has denied association with the conspiracy theory and political movement. As reported by Crosscut, Krabach has posted QAnon messages and images on social media, including the movements slogan: where we go one, we go all.

Amber Krabach, Republican legislative candidate, is defending the presence of signs littered across King Countys ballot drop boxes that claim this ballot box is under surveillance.

Krabach, a Republican state House candidate from Woodinville, has posted QAnon-related memes and tweets, sometimes under a hashtag that abbreviates the QAnon rallying cry, Where We Go One, We Go All. Krabach is running as a third party against incumbent state Rep. Larry Springer, D-Kirkland, in the 45th Legislative District, and Republican candidate John Gibbons.

After the signs started appearing next to ballot drop boxes across the Seattle area, many officials were quick to call the signs voter intimidation, but now the former King County GOP Elections Integrity Commission (EIC) chair Krabach says the signs were just an effort to inform the public of the law and to provide accurate information about how to report concerns.

On the signs were big red letters, reading this ballot drop box is under surveillance, and accepting compensation for harvesting or depositing ballots may be a violation of Federal Law, along with a QR code leading to the election incident report on the King County GOP website.

When brought to their attention, Michael Patrick Thomas, Chair of the King County Republican Party, said party officials were unaware of the signs. Thomas said they were created by the EIC and they had acted outside of its authority and without the express knowledge, permission, or consent of the King County Republican Party.

Krabach disputes the GOP chair though, asserting that the honorable EIC was never affiliated with the signage project, and the dissolution of the committee was unjustified.

The EIC has long been working toward increasing the election integrity in the county though, Krabach said, with fears of voter fraud at an all-time high across the country. A poll done by PolitiFact in June 2022 shows that 70% of Republicans believe there was some voter fraud in the 2020 election.

King County Elections conducts some of the safest and most secure elections anywhere in our nation, and these intimidation tactics are a direct extension of the anti-democratic rhetoric behind The Big Lie, King County Executive Dow Constantine said. Voter intimidation is a state and federal crime, and Ive directed Sheriff Cole-Tindall to investigate.

Under surveillance ballot-box signs likely voter intimidation, officials say

This is not enough to ensure the election integrity, and the EIC was put in place to advocate for voter increasing security, says Krabach.

King County has been asked numerous times to add security cameras to the 75+ drop boxes around our county because there is simply no way to effectively monitor them otherwise, Krabach said. They have outright refused to provide this service to the public. The surveillance sign project was a private, salutary effort to inform the public of the law and to provide accurate information about how to report concerns.

To back up her claims that the signs were completely legal, Krabach points to the election observer program that is already run by the city. In the program, volunteers from both political parties are invited to observe the opening and recording of ballot information, but not the actual drop boxes in the city.

It is not voter intimidation, or otherwise unlawful, to provide basic, factual information about federal election law, Krabach said. Any assertion to the contrary is inappropriate, and has the appearance of intending to keep voters, and the public at large, from being aware of this information

While observing the drop boxes is not illegal, the Washington Secretary of States office points out that if people feel their access is impeded, or are not comfortable casting their ballot, then it might be considered voter intimidation.

There are many ways curious or concerned voters can observe and engage in our electoral process. However, voter intimidation is not one of them, King County Prosecutor Dan Satterberg said. Washington law permits voters to drop off ballots for others.Signs intended to make voters feel like they are being watched and monitored and violating the law by depositing ballots is voter intimidation, period.

While city officials have removed the signs, Krabach is not happy with how the situation has been handled.

Instructing their employees to steal these signs is not only a violation of my First Amendment rights to free speech and free expression but also a flagrant theft of private property, Krabach said. With county and state officials now joining in to target citizen observers, while silencing their speech and trying to intimidate them out of their efforts to obtain assurance of election integrity, Id like to know if this seemingly tyrannical pile-on is really something they believe will increase voter confidence in our election process.

Elections officials called the placement of the signs serious offenses that would be fully investigated, so those who posted them would be held accountable.

See the article here:
Violation of my First Amendment rights, House candidate says of removal of election surveillance signs - MyNorthwest

As questions about healthcare and religious freedom spur protests around the country, Rabbi Rachael Pass says her abortion was a sacred choice one she is faithfully fighting to help protect for others.

In 2017, as a rabbinical student in her second year, Rabbi Pass accidentally conceived on the second night of Rosh Hashanah. She took a pregnancy test to confirm her suspicions weeks later on Rosh Chodesh Cheshvan, a Jewish holiday that occurs at the beginning of every month in the Hebrew calendar, marked by the new moon.

"The very first thing that I thought to do after reading the positive pregnancy test was to say the blessing that you say after using the bathroom," Pass told Insider, describing a prayer of gratitude for good health, asher yatzar. "Like, everything about my decision was Jewish."

Pass said her religious study and rituals were central to her pregnancy, the decision to terminate, and finally her decision to have anabortion: She prayed. She consulted her own rabbi. She studied the religious texts of the Torah, Mishnah, and Talmud for any reference to abortion.

The Torah, also called Jewish Written Law, contains the five books of the Hebrew Bible and is known more commonly to non-Jews as the "Old Testament." The Mishnah is the first major work of Jewish literature and contains oral traditions and commentaries known as the "Oral Torah." The Talmud is the primary source of Jewish religious law and Jewish theology.

Jewish law does not hold the belief shared by many abortion opponents that life begins at conception. A 2015 Pew Research survey found that 83 percent of American Jews believe abortion "should be legal in all/most cases" more than any other religious group. Even in conservative readings of Jewish texts, the faith largely protects and in some cases, requires abortion. As such, many Jewish organizations have argued that extreme abortion bans are violations of their First Amendment rights to practice their religion freely.

"Bodily autonomy is extraordinarily important and is extraordinarily valued in all walks of Judaism," Pass said. "And so the fact that the Dobbs decision limits access to abortion, it really does affect Jews' First Amendment right to freedom of religion."

After much consideration, as she held four misoprostol pills in the corners of her mouth to induce her abortion, she hummed along to a liturgy streamed by Central Synagogue Services, a reform congregation in Manhattan.

After her abortion, Pass visited a cleansing Jewish ritual bath, usually visited by observant women seven days after their period, called the mikvah, and ate challah and honey a symbol of sweeter times ahead.

"The challah and honey was sort of the last piece of that ritual. I mean, really, everything about it was Jewish and it was progressive Judaism in some sense," Pass said. "But also, the more I learned and studied, the more I discovered that it was like, my decision was in line with more conservative Judaism as well."

Though Pass said Jewish people may face a unique violation of their religious freedom by the overturning of Roe v. Wade, removing choices for reproductive care concerns all people.

"My concern for Jews is the same concern that I have for every person with a uterus living in America."

Without access to abortion, Pass said, her life would look totally different. She worries about people who have lost choices for reproductive care and those whose physical and mental health will suffer under new laws.

Despite being raised in a pro-choice household and feeling both sure of her decision and believing it was the right one for her, Pass said she experienced some feelings of secrecy and shame following her abortion that she traced, in part, to a sense of pressure and internalized "Christian hegemony" from growing up in Kentucky, which is 76% Christian.

It was when she began feeling like she was keeping her abortion a secret, rather than just a private matter, that she decided it was important to begin sharing her story and wrote an essay about abortion rights for a Jewish publication.

As Pass began to share her experience, in sermons and at community events, she said the feelingsof shame were replaced by ones of purpose. She had originally been inspired to go to rabbinical school after her own rabbi counseled her in a time of need, and found she was able to pay that support forward while counseling people about abortion and faith as they make their own choices around pregnancy.

"My abortion was deeply Jewish and I'm certainly not the only one [who has had one]," Pass said. "I know plenty of other Jews who I talk to, both in my research and in my writing of my articles, and just by people I know, who have had deeply Jewish abortions as well."

Since the overturning of Roe v. Wade, she has felt more compelled to organize, fundraise and share her perspective that abortion can be a blessing and a choice born of great faith with others.

"I think it's really important for people to hear a rabbinic voice who chose to have an abortion," Pass said. "Not because ofa horrible medical reason, but because pregnancy wasn't right for me for a lot of other reasons."

See the rest here:
Abortion is a Jewish right and a rabbi says hers was a blessing - Business Insider

Abortion-rights protesters shout slogans after tying green flags to the fence of the White House in Washington, D.C. on July 9, 2022. AP Photo/Gemunu Amarasinghe

At the close of its recent term the Supreme Court ruled on the cases of Carson v. Makin and Kennedy v. Bremerton School District, rekindling controversy over one of the most enduring issues in American history: religious liberty. Another of this terms blockbuster decisions, Dobbs v. Jackson Womens Health Organization, underlines the fact that religious beliefs and actions in the public realm matter. Whether the issue concerns religion and education, prayer or reproduction, Americans feel strongly about their religious liberties.

The Carson case came from Maine, where areas with too few students to justify a public high school used public money to pay private schools to educate their students. Under its policy, Maine only allowed nonsectarian private schools or nearby public school districts to receive the funds. Parents who wished to send their students to religious schools argued that the policy discriminated based on religion. The courts majority agreed, ruling that denying state support to students attending religious schools because their schools were religious violated the First Amendments protections on religious freedom.

In the Kennedy case, the court chipped away at decades of rulings that deemed school employees leading prayer an unlawful establishment of religion because it entangled church and state in the act. In the courts revised view, coach Joseph Kennedy possessed a First Amendment right to privately pray after football games on the 50-yard line, permissible even if students joined him in praying.

Religious liberty is one of the earliest civic values associated with the United States, yet defining and defending it has proved a centurieslong process. Both sides of the courts divided opinions claimed to be speaking for religious liberty. This is possible because religious liberty under the Constitution contains both a right to freely exercise religion and a right not to be coerced via the state into accepting someone elses religious practices.

As historians of American religious history and authors of a recent book, The Story of Religion in America, we know that both sides of religious liberty freedom to exercise ones own religion and freedom from being forced to support other peoples religions have a long and important past.

The Constitutions First Amendment, adopted in 1791, defended the free exercise of religion and prohibited the founding of a national church. The leading founders on religious liberty and church-state issues were two Virginians, Thomas Jefferson and James Madison.

The problem with religious beliefs, Madison believed, was that most often people could not agree on them. Governments, he argued, therefore had no business supporting religion.

Religion could unite people, but most often it did the opposite, dividing people into opposing sides, each believing their side was sacred. In Madisons view, therefore, religious differences made it harder to run a government for the common good.

Over 150 years before religious liberty entered the Constitution, however, it lived in the mind and conduct of Roger Williams, a Puritan educated at the University of Cambridge, who challenged Puritan views on religious liberty and the relationship between church and state.

Roger Williams founded Providence, R.I., as a refuge for people wanting religious liberty. AP Photo/Steven Senne

No sooner had Williams landed in New England than he began challenging Puritan authorities, saying that civil courts should not enforce religious belief and that the right to worship (or not) according to ones own conscience was fundamental. He noted that the American Indians, to whom his fellow Christians considered themselves superior, were often better people than the English.

These beliefs terrified and infuriated Puritan leaders, who promptly banished radical Roger from the Massachusetts Bay Colony. He later resurfaced in what became the colony of Rhode Island, where he helped to start a new settlement called Providence, which, unlike Puritan-controlled Massachusetts Bay, would allow religious liberty for all who lived there.

Although the Puritans thought Williams ideas were dangerous, Williams believed the greatest danger was in government trying to legislate religion. He only had to point to the fact that more blood had been shed over religion than just about any issue, with Protestants fighting Catholics, Christians fighting Muslims, and European empires trying to forcibly convert Indigenous Americans in so-called missions.

Yet state-sponsored religion died hard. Massachusetts was the last state to abandon the establishment of a church, in 1833. Even after all the states had abandoned their tax-supported official denominations, states continued to police religious and moral conduct.

Moreover, the states themselves often forced Christianity, and particularly Protestantism, onto the public in school and public policy. This continued until the First Amendments prohibitions on government religion was extended to the states via the 14th Amendment. Two Supreme Court cases involving Jehovahs Witnesses refusing to salute the flag Minersville School District v. Gobitis (1940) and West Virginia v. Barnette (1943) were important in this. In other words, the right to religious liberty, in the sense of being allowed to refrain from an activity due to ones religious convictions, is less than a long lifetime old.

Up through the Vietnam War, if a man applied to be a conscientious objector, draft boards examined whether he came from a denomination that objected to all participation in war Mennonites or Quakers, for example. Objection to a particular war, or assertion of ones own sincerely held beliefs, did not get one off the hook for draft induction.

This orientation changed beginning with the Supreme Courts recognition of individual conscience in two cases: Welsh v. United States (1970) and Gillette v. United States (1971). The rulings came too late to keep Muhammad Ali from going to jail when he resisted the draft in 1967. But they relocated the locus of conscience to individuals, provided their objections were sincerely held.

In subsequent decades American religious life has itself become more centered on individuals and less on the teachings of religious traditions. Courts have likewise focused more on particular peoples definitions of their own sincerely held beliefs. These shifts are both very American as illustrated in the example of Roger Williams and susceptible to greater social division because citizens and groups beliefs may take them in opposite directions.

Religious liberty in America is perpetually a work in progress. The free exercise and establishment clauses of the First Amendment live in perpetual tension two goods that must be balanced. The Supreme Courts recent religious liberty rulings are fully a part of Americas long struggle to define religious freedom and only the most recent attempt to achieve a balance between goods.

James Hudnut-Beumler, Professor of American Religious History, Vanderbilt Divinity School and James P. Byrd, Professor of American Religious History, Vanderbilt Divinity School

This article is republished from The Conversation under a Creative Commons license. Read the original article.

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Religious Liberty Has a Long and Messy History And There Is a Reason Americans Feel Strongly About It - Word and Way

Last week the House passed a wide-ranging defense authorization bill that included provisions to assist Afghan refugees and documented Dreamers, in what may be the last opportunity for Congress to enact any immigration reforms this year.

Despite many bills being negotiated and introduced in both chambers during the 117th Congress, which lasts from January 2021 until January 2023, lawmakers have so far failed to come together on any immigration provisions, even as many fear that time is running out before midterm elections potentially change the makeup of Congress.

The Farm Workforce Modernization Act is the sole standalone immigration bill currently under active consideration, but its fate in the Senate despite being passed by the House of Representatives twice is uncertain. The House-passed China competition bill had also contained immigration provisions, but these were stripped out by the Senate as the bill was reduced to merely a bill to fund development of the U.S. semiconductor chips industry.

Thus, the most likely candidate for immigration provisions to become law during this Congress is the National Defense Authorization Act (NDAA), which was passed by the House on July 14 with three immigration-related amendments. The Senate is negotiating its own version of the NDAA.

The first immigration-related amendment to the NDAA was a bipartisan provision to protect documented Dreamers, the dependent children of green card applicants and employment visa holders who face deportation when they age out of eligibility for the dependent visa status. The amendment was offered by Rep. Deborah K. Ross, D-N.C., and co-sponsored by Rep. Mariannette Miller-Meeks, R-Iowa.

Afghan refugees will also see some relief if the House version of the NDAA becomes law. Democratic Rep. Elissa Slotkin, D-Mich., offered two amendments to assist Afghan citizens who assisted the U.S. efforts in Afghanistan and are now in danger.

The first amendment would direct the Department of State to dramatically increase processing capacity for Afghan special immigrant visa (SIV) applications and refugee referrals. The SIV system, put in place originally to help Afghan interpreters and others who directly assisted the U.S. military, has been plagued for years by bureaucratic red tape and years-long backlogs.

The second amendment included by Rep. Slotkin would make it easier for Afghan students to receive visas without proving an intent to return to Afghanistan. To be approved, student visa applicants must prove that they do not have immigrant intent, which means they dont intend to stay in the U.S. permanently, but plan to return to their home country when they complete their studies.

However, a different proposal to exempt immigrants with advanced science, technology, engineering, and math (STEM) degrees in national security-related fields from the numerical green card limits, which have contributed substantially to the massive green card backlog at DOS, was shelved. At the close of FY2021, there were more than 9 million green card applicants stuck in the backlogabout 7.5 million on the family-based side and 1.6 million on the employment-based side. The amendment was cut by the House Rules Committee for containing fees that ran afoul of legislative tax rules.

The House voted by roughly a 3-1 majority to approve the NDAA, which funds and directs policy for the military and other aspects of the U.S. defense. The bill has been passed each year since 1961, and is considered a must-pass piece of legislation. As Caroline Simon noted at RollCall, the inclusion of immigration provisions [in the bill] bodes well for their future at a time when immigration bills rarely move as stand-alone measures.

The Farm Workforce Modernization Act (FWMA) has been passed by the House twice, and aims to modernize the H-2A temporary agricultural visa program. The current food production workforce recruitment system in the U.S. is believed by many to have led to higher food prices, particularly for dairy, meat, and vegetables.

FWMA would allow more farmers to hire temporary H-2A workers year-round, rather than only for short-term, seasonal work. Currently, farms like dairy and pork producers cannot source workers from the H-2A visa program, which has intensified labor shortages in these food industries during a time of already record prices.

The bill would also provide a pathway to legalization for some farm workers a path that does not currently exist for H-2A visa holders.

Despite the fact that the House came together with bipartisan support to pass this bill twice already, FWMA is in peril in the Senate, where negotiators are arguing over a provision that would expand federal law to allow H-2A workers to sue their employers if U.S. labor laws are broken.

The largest agriculture lobbyist in Washington, D.C., the American Farm Bureau Federation, is known for its usually conservative positions and is opposed to the expansion of the Migrant and Seasonal Agricultural Workers Protections Act (MSPA) contained in the Farm Workforce bill.

Though Senators have some agreements nailed down, including an agreement to freeze H-2A wages at current levels for 2023, and a deal that would allow employers to hire more H-2A workers year-round than the House originally proposed, the overall fate of the bill remains uncertain.

Because the American Farm Bureau has refused to support expansion of MSPA for H-2A workers, some lawmakers are hesitant to commit to the bill. Some growers feel that the AFBF has sided with growers of only one region of the country, and some lawmakers worry that will come at the expense of a workable solution to sharply increasing food prices in the United States.

As Rep. Doug LaMalf R-Calif., said at a press conference hosted by the American Business Immigration Coalition last week, Do people want to eat in this country or not?

The U.S. Innovation and Competition Act (USICA) is the bill formerly referred to informally as the China competition bill, a sweeping piece of legislation aimed at countering Chinas economic reach.

The House version of a China competition bill had included some immigration policies, but key Republican senators refused their inclusion. Proposals to ease the path to a green card for immigrants with advanced STEM degrees were slashed from the Senate bill.

The bill has been largely gutted in the Senate, where it has been whittled down merely to CHIPS funding (Creating Helpful Incentives to Produce Semiconductors). In its current form, the slimmed-down CHIPS bill will provide a $52 billion investment in semiconductor manufacturing subsidies, as well as tax credits and funding for scientific research.

The Senate first passed its version of USICA in June 2021, but the House did not take it up or otherwise take any action on the bill until this year. Some Senators reportedly believe this delay is responsible for creating the dire shortage situation in which the U.S. now finds itself.

The Senate passed a procedural move to prepare for potential votes on USICA in both the House and the Senate by the end of July. Both the House of Representatives and the Senate are scheduled to recess in August.

With midterm elections looming in November, many are predicting that control of the House could switch from the Democratic to the Republican party. House Minority Leader Kevin McCarthy, R-Calif., who would become Speaker of the House if Republicans take the majority, has vowed that he will bring no immigration-related bills to the floor.

McCarthy has also indicated plans to attempt to impeach the head of the Department of Homeland Security (DHS), Alejandro Mayorkas, for supposed dereliction of duty. Republican lawmakers hold Mayorkas singularly accountable for the high level of border crossings in recent years, despite the fact that the implementation of Title 42 at the southern border by the previous administration has dramatically increased border crossings itself.

Other proposed plans by the hopeful-majority include legislation to restart Remain in Mexico, further increasing security at the heavily-militarized border, ramping up arrests and detentions of all immigrants living in the U.S., regardless of whether they are a threat to national security or public safety, and further restricting the already-hobbled asylum system.

These threats by members of Republican party leadership add to the sense of urgency felt on Capitol Hill, as Democrats rush to pass what they can before time runs out in November. Given the breakdown of President Joe Bidens Build Back Better legislation earlier this year, followed by the repeated stalling of bills and removal of immigration reform amendments, immigration advocates in Congress will need to move quickly to save whats left of Bidens immigration agenda, as well.

Read more:
Defense Bill Could Be Last Chance for Immigration Laws This Year - Boundless

UPDATE

9:51 AM PT -- A spokesperson for Amber tells TMZ ... "We believe the court made errors that prevented a just and fair verdict consistent with the First Amendment. We are therefore appealing the verdict. While we realize today's filing will ignite the Twitter bonfires, there are steps we need to take to ensure both fairness and justice."

Amber Heard is officially appealing the verdict in her defamation case with Johnny Depp.

Amber's attorneys filed the necessary documents Thursday in Fairfax County, Virginia to appeal the $10.3 million judgment a jury ordered her last month to pay her ex-husband.

The jury also ruled Johnny had to pay Amber $2 million, so effectively she owes him $8.3 mil in damages -- but she had vowed since the day of the verdict that she would appeal.

As we reported, Amber also filed a motion requesting a new trial, because one of the jurors in the case had come to court when it was actually his father who received the jury summons. However, the judge rejected that motion.

Johnny doesn't seem concerned Amber's followed through on appealing the verdict. His rep tells TMZ ... "The jury listened to the extensive evidence presented during the six-week trial and came to a clear and unanimous verdict that the defendant herself defamed Mr. Depp in multiple instances. We remain confident in our case and that this verdict will stand.

Daily Mail first reported Amber's appeal.

Originally Published -- 9:33 AM PT

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Amber Heard Files Appeal of Verdict in Johnny Depp Defamation Case - TMZ