Free speech, faith, and family

MYRNA BROWN, HOST: Coming up next on The World and Everything in It: parental rights and free speech collide.

MARY REICHARD, HOST: Two dads wanted to quietly protest a high school’s decision to let a male student identifying as female to play on their daughters’ soccer team. What happened next raises constitutional questions.

BROWN: Joining us now with the details is Steve West—attorney, former federal prosecutor, and writer on religious liberty for WORLD Digital.

REICHARD: Good morning, Steve.

STEVE WEST: Good morning, Mary.

REICHARD: Well, tell us, what’s going on with this case?

WEST: We’ve all heard a lot about how unfair it is for males to play on girls’ teams— laws and lawsuits trying to rein it in. The Trump administration has even stepped in to oppose this. Yet this is not a case directly about protecting girls’ sports. It’s about something even more basic: you know, the constitutional right to express disagreement with a policy. It’s about free speech. Here it’s not even about noisy disagreement or waving protest signs. It’s about two fathers who decided to stage a silent protest after they learned that a male on an opposing team would be playing against their daughters at a high school soccer match. They simply wore pink wristbands decorated with two black X’s to symbolize female chromosomes.

REICHARD: And I take it school officials did not like that.

WEST: They did not. They intervened, and asked a police officer to assist. The two men were told by the officer to remove the wrist bands, and when they refused, the district banned them from games. So then, aided by the Institute for free speech, the fathers filed a federal lawsuit last year, and then last month, a federal judge sided with the school and denied a motion by the two parents to block the school’s ban.

REICHARD: I mean that seems to be a fairly extreme ruling, no?

WEST: I think so. There’s a 1969 Supreme Court ruling, Tinker v. De Moines, that the fathers relied on. Tinker, who was a student who was 13 years old at that time, and other students were suspended for wearing black armbands to protest the Vietnam War. The court ruled for the students, concluding that school officials couldn’t censor student speech unless it materially and substantially disrupts the educational process. In other words, it has to be a big deal. And it didn’t do that. Even though it did get students talking. Well, the judge here didn’t buy it but said the parents targeted the male student and their speech could be viewed as harassment. That’s in spite of the fact that adults typically are accorded higher speech rights than are students, and what disruption did occur could be viewed as the result of the intervention by school officials. The parents said that this was viewpoint discrimination—that’s the short of it.

REICHARD: Well right, that when the school makes a big deal, that’s where the disruption occurs, and that was the argument. But I’m guessing the judge didn’t buy that so that’s not the end of the story.

WEST: It’s not the end. The parents have appealed, and the U.S. Department of Justice has sided with them and will file a friend-of the-court brief with the 1st U.S. Circuit Court of Appeals. So stay tuned.

REICHARD: Alright, let’s move to a second case out of Maine. This one involves a custody dispute, and that is not generally a First Amendment concern. So what’s going on there?

WEST: You’re right, and we’re not used to religious liberty concerns coming up in custody battles. But this case attracted the attention of Liberty Counsel after a Maine state court judge stripped a mother, Emily, of her right to bring her child up in her Christian faith by taking her to church at a local Calvary Chapel. That’s a church most will recognize as evangelical in nature and a part of a loose affiliation of churches that grew out of the original Calvary Chapel in Costa Mesa, California. That one was pastored by Chuck Smith and featured in the film, Jesus Revolution. So, no one would contend the church is a cult—no one, perhaps, save the judge in this case. But the father, Matt, after watching some sermons online, didn’t like what he heard—Biblical teaching on heaven, hell, spiritual warfare, and Christ’s second coming. He said all this was psychologically damaging to his daughter. After a hearing, the judge agreed.

REICHARD: That seems a bit extreme. What reason did the judge give?

WEST: She relied on the testimony of an expert on cults who said that because of the way the church was organized, because of its teachings, and the charisma of its pastor, attending the church was damaging to the daughter. She said it was teaching “fear mongering, paranoia, and anxiety.” And that was it. No more Calvary Chapel. So now it’s being appealed to the Maine Supreme Court. And in the meantime, the dad is in charge of the daughter’s religious upbringing.

REICHARD: Now, this isn’t how these things typically go, is it?

WEST: Not at all. As contentious as custody issues can be, most parents work out who will be responsible for the religious upbringing of the child, or they share it. Courts are ill-equipped to do that, and this case demonstrates that. You know, at best, the ruling shows a deep misunderstanding of church and religion. And at worst, it demonstrates hostility to religion that offends what a judge believes is an enlightened morality.

REICHARD: Finally, then some good news …

WEST: Well right, I’m always thankful for that. The Supreme Court ruled a couple years ago that Philadelphia couldn’t condition the participation of Catholic Social Services in foster care on its agreement to work with same-sex couples. Yet some states interested in pushing an LGBTQ agenda have tried another tactic: and that’s finding foster or adoptive parents who won’t support a child’s gender identity or same-sex attraction unfit for parenting. That’s the battle Oregon mom Jessica Bates continues to fight.

REICHARD: Well, I’m still waiting to hear good news in that one…

WEST: Yes! Both Kansas and Arkansas recently passed legislation that protects religious families’ rights to participate in state and foster care adoption programs. Both state laws guard against exactly what happened in Oregon–shutting religious parents out of the child welfare system. These laws are a welcome attempt to preempt such moves by state social service agencies—even as lawyers continue to argue that such discrimination is unconstitutional. And these two midwest states are not the only ones protecting religious families. Fifteen states now offer some protection for discrimination against families or faith-based adoption providers.

REICHARD: That is the good news! Steve West writes about religious liberties for WORLD Digital. You can read his work at wng.org. You can also subscribe to his free weekly newsletter on First Amendment issues, called Liberties. Steve, always good to have you on. Thanks so much!

WEST: Thanks Mary!

WORLD Radio transcripts are created on a rush deadline. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of WORLD Radio programming is the audio record.