Justices consider viewpoint challenges on “conversion therapy” and gender

Share

The Relist Watch column examines cert petitions that the Supreme Court has “relisted” for its upcoming conference. A short explanation of relists is available here. 

After a bit of stasis on the relist front, the Supreme Court took decisive action at last week’s conference, on Monday denying review of nine cases that had been relisted between three and seven times each. Relisting a case that many times suggests that at least some of the justices felt fairly strong about the issues involved. And sure enough, the justices filed opinions dissenting from the denial of certiorari, or at least an opinion respecting the denial of certiorari, addressing seven of the nine cases.

Most notable of all were the denials in Turco v. City of Englewood, New Jersey, and Coalition Life v. City of Carbondale, Illinois, both of which involved challenges to those cities’ laws establishing protest “buffer zones” around abortion clinics and asking the Supreme Court to overrule Hill v. Colorado, its 25-year-old decision holding that such zones are constitutionally permissible.

Justice Clarence Thomas dissented from the decision not to take up the Illinois case, noting that members of the court had called Hill “an ‘absurd,’ ‘defunct,’ ‘erroneous,’ and ‘long-discredited’ ‘aberration’ from the rest of our First Amendment jurisprudence.” Because lower courts continue to feel bound by it, he contended, the Supreme Court should make its defunct status official.

There are 106 petitions and applications scheduled for Friday’s conference, six of which were relisted for the first time this week. It is a big week for issue advocacy organizations – five of the six relists are cases brought by them. And it is a big week for First Amendment claims – four (really, five) of the six relists raise them. While we’re talking numbers, it was also a big week for challenges to the regulation of professionals – half of the relisted cases address such issues.

The Institute for Justice is an public-interest firm based in the Washington, D.C., suburbs that, among other projects, seeks to challenge occupational licensing laws that it believes needlessly deprive people of economic liberty to engage in productive endeavors. Two petitions from the group, 360 Virtual Drone Services LLC v. Ritter and Crownholm v. Moore, involve state surveying laws. Many states require people who are paid to perform certain kinds of mapping to have obtained a license from a state board of surveyors. IJ challenged those laws, arguing that making such maps conveys information (typically in connection with construction) and thus constitutes speech protected by the First Amendment. Therefore, the group contends, laws requiring licensing must be assessed under the most stringent standard of review, strict scrutiny.

The U.S. Courts of Appeals for the 4th Circuit and for the 9th Circuit, respectively, rejected IJ’s arguments. The 4th Circuit held that because such laws are “a regulation of professional conduct that only incidentally impacts speech,” “precedent requires that we apply a more relaxed form of intermediate scrutiny that mandates only that the restriction be ‘sufficiently drawn’ to protect a substantial state interest.” The court upheld the law under that standard. The 9th Circuit ruled similarly. IJ now seeks Supreme Court review, arguing that more searching scrutiny is warranted.

Our next two relisted petitions were brought by the conservative legal nonprofit Alliance Defending Freedom, which last term represented doctors and medical groups seeking to roll back access to one of the two drugs used in medication abortions. It frequently represents people whose views put them in conflict with (usually state and local) laws requiring the recognition of same-sex marriage or that require people to act or speak inconsistently with their own views of sexual orientation or identity – such as a Colorado website designer who did not want to design websites for same-sex weddings.

Chiles v. Salazar involves a challenge to Colorado’s Minor Conversion Therapy Law, which prohibits mental health professionals from providing clients under the age of 18 with “conversion therapy,” the attempt to “convert” LGBTQ+ youth to heterosexuality or traditional gender identity.

Kaley Chiles, a licensed professional counselor, brought a federal civil rights challenge to the law, arguing that it violates both the free speech and free exercise clauses of the First Amendment because it interferes with her ability to communicate with her clients. Chiles sought a preliminary injunction to prohibit the state from enforcing the law against her.

The district court denied her request for a preliminary injunction and by a divided vote, the U.S. Court of Appeals for the 10th Circuit affirmed, holding that Chiles failed to show a likelihood of success on the merits of her First Amendment claims.

The 10th Circuit noted that the Colorado legislature had cited evidence that conversion therapy is harmful to clients, and the court of appeals concluded that the law represented a permissible regulation of professional conduct that only incidentally affects speech.

Judge Harris Hartz dissented, citing Supreme Court precedent recognizing that “speech is not unprotected merely because it is uttered by professionals.” Chiles, represented by ADF, now seeks Supreme Court review, arguing that the law regulates speech in violation of the First Amendment. The court has relisted similar cases before, but so far they’ve never mustered the necessary votes for a grant.

Now we move on to a different type of First Amendment claim. L.M. was sent home from middle school for wearing a t-shirt that said, “There are only two genders.” The school said that the shirt violated the school dress code, which prohibits clothing bearing “hate speech that target[s] groups based on,” among many other things, “gender identity.”

In protest, L.M. then wore a t-shirt that covered over “only two” with a lettered piece of tape so it read, “There are [censored] genders.” He was required to remove the shirt. L.M. maintains that other students were permitted to express their views on gender when they were more to the school’s liking.

L.M., through his parents, filed a federal civil rights suit against the town, alleging the school district had violated his First Amendment rights. The district court granted the town summary judgment, and the U.S. Court of Appeals for the 1st Circuit affirmed. It held in a lengthy opinion that under the Supreme Court’s landmark decision in Tinker v. Des Moines Independent Community School District, the school could prohibit the shirts because of its judgment about what would make “an environment conducive to learning.”

In L.M. v. Town of Middleborough, Massachusetts, L.M., also represented by ADF, seeks review, arguing that the school district presumed without evidence that L.M.’s shirts would be substantially disruptive and that the speech should be permitted because it was silent, passive, and untargeted, and responded to the school’s opposing views and policies.

Hittle v. City of Stockton, California, is an employment-law case, but one with pronounced implications for the free exercise clause of the First Amendment. The City of Stockton, Calif., fired Fire Department Chief Ronald Hittle after disciplinary proceedings. The city had received anonymous complaints that that Hittle was a “religious fanatic” who showed favoritism to co-religionists. A city-hired investigator produced a report concluding that Hittle lacked effectiveness and judgment, used city time and a city vehicle to attend a religious event, failed to report time off, engaged in potential favoritism, and engaged in other misconduct. After his termination, Hittle sued the city and various officials, claiming that his termination constituted unlawful employment discrimination under Title VII based on his religion, in part because he had attended a Christian leadership event after he was told to seek leadership training.

The district court and the U.S. Court of Appeals for the 9th Circuit upheld his termination using the framework of McDonnell Douglas Corp. v. Green. Under that framework, a plaintiff alleging discrimination must first show that: (1) he is a member of a protected class; (2) he was qualified for his position; (3) he experienced an adverse employment action; and (4) similarly situated individuals outside his protected class were treated more favorably, or other circumstances surrounding the adverse employment action give rise to an inference of discrimination. If the plaintiff can make that showing, the burden then shifts to the defendant to articulate a legitimate, nondiscriminatory reason for the challenged actions. After that, the burden shifts back to the plaintiff, who must show that the employer’s proffered nondiscriminatory reason is pretextual. A plaintiff meets the burden either directly by persuading the court that the employer was more likely to have been motivated by a discriminatory reason or indirectly by showing that the employer’s proffered explanation is unworthy of credence.

A divided panel of the 9th Circuit held that the city had proffered a legitimate nondiscriminatory basis for disciplining Hittle because the religious leadership event he attended on city time was not appropriate for getting the kind of management training the city required. It concluded that various remarks made by decisionmakers did not reflect discrimination.

The full court of appeals then declined to rehear the case, over the votes of four judges who argued that the “record includes ample direct and circumstantial evidence of [the decisionmakers’] discriminatory intent, which the panel should have recognized as more than sufficient to meet Hittle’s burden at the summary judgment stage.”

Hittle now seeks review. In addition to distinguished outside counsel, Hittle is represented by the Church State Council, which seeks to protect religious exercise, especially in the workplace, as well as the religious liberty group First Liberty Institute. They argue that the McDonnell Douglas framework is countertextual, hard to apply, and denies plaintiffs with meritorious discrimination claims their day in court. And in particular, Hittle argues that the lower courts are confused regarding the third step in the process, under which the plaintiff has to show the proffered reason is pretextual. The test is especially inappropriate, Hittle argues, in cases brought under the theory that the protected status is a motivating factor for termination, where discrimination doesn’t need to be a but-for cause to be actionable.

Last up is Barrett v. United States. Dwayne Barrett was a member of an informal criminal organization known as “the Crew” that committed armed robberies of mostly small businesses. Barrett was convicted of Hobbs Act robbery, meaning the unlawful taking of property by force, violence, intimidation, or fear, which affects interstate or foreign commerce. He was also convicted of violating 18 U.S.C. § 924(c), which prohibits using a firearm during and in relation to a crime of violence or drug trafficking crime, and 18 U.S.C. § 924(j), which imposes an additional penalty for murder or manslaughter during a Section 924(c) offense. Barrett was convicted and his conviction and sentence were affirmed by the U.S. Court of Appeals for the 2d Circuit.

Barrett seeks review, arguing that the double jeopardy clause prohibits imposing sentences on both a Section 924(c) conviction and a Section 924(j) conviction, when the offenses are based on the same underlying Hobbs Act robbery. He also argues that Hobbs Act robbery is not a crime of violence under Section 924(c) because it does not have as an element the use, attempted use, or threatened use of physical force against the person or property of another.

The Supreme Court has a lot to chew on this week. I suspect that these relists will not yield many grants, though they may yield opinions. We should know more soon.

New Relists

Crownholm v. Moore, 24-276
Issues: (1) What standard applies to determine whether an occupational-licensing law’s restriction on a person’s use, creation, and dissemination of information in drawings is a regulation of his speech or of his conduct that incidentally involves his speech; and (2) what level of constitutional scrutiny applies to speech regulated by an occupational-licensing law.
(Relisted after the Feb. 21 conference.)

360 Virtual Drone Services LLC v. Ritter, 24-279
Issue: Whether, in an as-applied First Amendment challenge to an occupational-licensing law, the standard for determining whether the law regulates speech or regulates conduct is this court’s traditional conduct-versus-speech dichotomy.
(Relisted after the Feb. 21 conference.)

L.M. v. Town of Middleborough, Massachusetts, 24-410
Issue: Whether school officials may presume substantial disruption or a violation of the rights of others from a student’s silent, passive, and untargeted ideological speech simply because that speech relates to matters of personal identity, even when the speech responds to the school’s opposing views, actions, or policies.
(Relisted after the Feb. 21 conference.)

Hittle v. City of Stockton, California, 24-427
Issues: (1) Whether this court should overrule McDonnell Douglas Corp. v. Green; and (2) whether step three of the McDonnell Douglas burden-shifting framework requires a plaintiff to disprove the employer’s proffered reason for the adverse employment action, when the text of Title VII of the Civil Rights Act of 1964 and Bostock v. Clayton County provide that an action may have more than one but-for cause or motivating factor.
(Relisted after the Feb. 21 conference.)

Chiles v. Salazar, 24-539
Issue: Whether a law that censors certain conversations between counselors and their clients based on the viewpoints expressed regulates conduct or violates the free speech clause of the First Amendment.
(Relisted after the Feb. 21 conference.)

Barrett v. United States, 24-5774
Issues: (1) Whether the double jeopardy clause of the Fifth Amendment permits two sentences for an act that violates 18 U.S.C. § 924(c) and (j); and (2) whether “Hobbs Act robbery qualifies as a crime of violence under Section 924(c)(3)(A), a question left open after” United States v. Taylor.
(Relisted after the Feb. 21 conference.)

Returning Relists

Apache Stronghold v. United States, 24-291
Issue: Whether the government “substantially burdens” religious exercise under the Religious Freedom Restoration Act, or must satisfy heightened scrutiny under the free exercise clause of the First Amendment, when it singles out a sacred site for complete physical destruction, ending specific religious rituals forever.
(Relisted after the Dec. 6, Dec. 13, Jan. 10, Jan. 17, Jan. 24, and Feb. 21 conferences.)

Ocean State Tactical, LLC v. Rhode Island, 24-131
Issues: (1) Whether a retrospective and confiscatory ban on the possession of ammunition-feeding devices that are in common use violates the Second Amendment; and (2) whether a law dispossessing citizens without compensation of property that they lawfully acquired and long possessed without incident violates the takings clause of the Fifth Amendment.
(Relisted after the Jan. 10, Jan. 17, Jan. 24, and Feb. 21 conferences.)

Snope v. Brown, 24-203
Issue: Whether the Constitution permits Maryland to ban semiautomatic rifles that are in common use for lawful purposes, including the most popular rifle in America.
(Relisted after the Jan. 10, Jan. 17, Jan. 24, and Feb. 21 conferences.)

Franklin v. New York, 24-330
Issues: (1) Whether the Sixth Amendment’s confrontation clause applies to out-of-court statements admitted as evidence against criminal defendants if, and only if, the statements were created for the primary purpose of serving as trial testimony; and (2) whether a post-arrest report prepared about a criminal defendant by an agent of the state for use in a criminal proceeding can be admitted as evidence against the defendant at trial, without providing a right to cross-examine the report’s author.
(Relisted after the Jan. 10, Jan. 17, Jan. 24, and Feb. 21 conferences.)

Speech First, Inc. v. Whitten, 24-361
Issue: Whether university bias-response teams — official entities that solicit anonymous reports of bias, track them, investigate them, ask to meet with the perpetrators, and threaten to refer students for formal discipline — objectively chill students’ speech under the First Amendment.
(Relisted after the Jan. 10, Jan. 17, Jan. 24, and Feb. 21 conferences.)

Alabama v. California, 22O158
Issue: Whether the Supreme Court should enjoin states from seeking to impose liability or obtain equitable relief premised on either emissions by or in other states, or the promotion, use and/or sale of traditional energy products in or to those other states. CVSG: 12/10/2024
(Relisted after the Jan. 17, Jan. 24, and Feb. 21 conferences.)

The post Justices consider viewpoint challenges on “conversion therapy” and gender appeared first on SCOTUSblog.