Forecasting First Amendment challenges

From city councils to the U.S. Supreme Court, free speech and religious liberty advocates continue to keep a watchful eye—and a hopeful attitude—on the conflicts spilling over into 2018. As the new year begins, I asked advocates in the areas of law, education, and public policy to forecast the challenges and anticipated triumphs for 2018. The respondents were Brad Dacus, president of the Pacific Justice Institute; Gregory Seltz, executive director of the Lutheran Center for Religious Liberty; Matt Staver, chairman of Liberty Counsel; Zach Greenberg, the Justice Robert H. Jackson legal fellow at the Foundation for Individual Rights in Education; Russell Moore, president of the Ethics and Religious Liberty Commission of the Southern Baptist Convention; and Luke Goodrich, deputy general counsel at Becket. Responses have been edited for length and clarity.

What First Amendment conflicts will receive the most attention in 2018?

Dacus: “The ongoing conflict between LGBTQ anti-discrimination laws and rights of conscience.”

Seltz: “All things associated with marriage and gay marriage will continue to dominate the cases in the near future because of the false merging—my opinion, though shared by others—of the issues of marriage and civil rights. With the false notion that gay marriage is a civil right issue, rather than a First Amendment issue, and a government encroachment issue, cases will ensue until such things are clarified.”

Moore: “The highest profile case will be Masterpiece Cakeshop and related to that the Barronelle Stutzman case as well. I expect there to be a flurry of litigation coming out of those cases regardless of what happens [at the U.S. Supreme Court]. I see nine or 10 different scenarios depending on how broadly or how narrowly the court rules and in which direction. I think a great deal of religious liberty questions will be held in abeyance until the court decides that case. … There’s always the possibility that the ruling has enough ambiguity that it creates further litigation.”

Greenberg: “In 2018, we could see the continued use of the ‘heckler’s veto’ perpetuated by groups and individuals wishing to shut down controversial speakers when they come to campus. Around graduation season, we expect to see a spate of disinvitation attempts targeted at controversial commencement speakers. We could also see more calls by students, faculty, and administrators to ban ‘hate speech’ and offensive expression on campus.”

Goodrich: “The interpretation of the Establishment Clause will continue to be hotly contested in 2018, and the Supreme Court is poised to take one of these cases in the near future. One good candidate involves a historic cross that has stood in Pensacola, Fla., since World War II.”

What are some cases to watch in 2018 beyond Masterpiece Cakeshop?

Staver: “The pro-life crisis pregnancy care centers before the Supreme Court, military religious freedom cases in light of the transgender issue, other free speech cases colliding with the LGBT agenda, and the counseling ban on change therapy prohibiting counselors from providing and clients from receiving any counsel seeking to change or reduce unwanted same-sex attractions, behavior, or identity.”

Moore: “I think there will continue to be conflicts over the transgender question as well. … I think the transgender military issue has probably received more attention than anything else related to those issues, but I actually think that more contentious will be those issues as related to educational institutions … [and] as it relates to the prison system—how does the government define sex in terms of a system that is, by necessity, sexually differentiated. Also, NIFLA v. Becerra—the question of whether or not the government can essentially force pro-life pregnancy centers to advocate for abortion. … And so that’s a fundamental free speech case because if the government can require pregnancy resource centers to essentially parrot the Planned Parenthood line, then the government can do anything.”

Seltz: “Protecting Freedom of Conscience from Government Discrimination Act. [The] Mississippi law was enacted to protect religious business from outside coercion. It has been halted due to legal challenges. … Such laws are being challenged due to the aggressiveness of the sexual libertine factions of American culture which desire not merely to be part of a ‘live and let live reality,’ but to be the new, culturally ‘norming’ reality for all.”

Goodrich: “The Little Sisters of the Poor are back in court, a case that everyone should keep a close eye on. … [And] the Federal Emergency Management Agency is denying churches, mosques, and synagogues from receiving the same disaster relief grants made available to museums, zoos, and community centers. … In Michigan, the ACLU is targeting religious adoption agencies and trying to drive them out of providing adoption and foster services simply because they have a religious-based mission.”

What new conflicts do you anticipate in the coming year?

Seltz: “I think the academic construct of gender is creating a dystopia in our culture that many expect the courts to decide. … Also, the SOGI [sexual orientation and gender identity] laws and the challenges to any who oppose them are going to be ongoing.”

Greenberg: “We anticipate continued calls for censorship on campus. There will always be a tension between those advocating for free speech and those calling for censorship.”

Dacus: “There will be an increase in laws that criminalize expression, for example pronouns and street preaching.”

Do you see rays of hope on any of these fronts?

Greenberg: “The number of colleges with severely restricted speech codes has been decreasing, and the number of universities that fully protect free speech is increasing. Also, the number of colleges that employ ‘free speech zones’ has been decreasing.”

Staver: “Yes, we are winning many cases. We have an administration that is favorable to religious liberty and committed to nominating judges and justices that uphold the Constitution and the rule of law.”

Goodrich: “We see plenty of reason for hope. Becket is undefeated at the U.S. Supreme Court and has a 95 percent win rate in the courts of appeals. … These victories show that there is still strong, bipartisan support for religious liberty in the courts. We expect more victories this year, and our studies show that religious exemptions won in court are durable and help a broad array of religious groups.”

Seltz: My greatest hope is that people begin to see again the uniqueness of the American experiment, which saw traditional morality, even in its ‘outward, curbing action’ alone, is best striven for by ‘free, religious, self-disciplining’ citizens and not by government’s coercive power.”

Moore: I’m very hopeful—seeing the way many religious liberty issues have been decided over the past several years. … I also see some good developments happening at the local level and many of the most important religious liberty questions are happening at the local level. … I’ve seen a willingness for people to press their case forward, which is necessary. One of the things I worried about several years ago is that religious people would just not go through the ordeal of litigating some of these questions, which of course would just set precedents that would then oppress other people later. I’m very optimistic in seeing the way people have been willing to take these cases on and to do so, for the most part, I think, in a kind and persuasive sort of way.”