Valpo Law Blog

Analysis of current legal issues and cases in the Seventh Circuit Court of Appeals

Category: First Amendment (page 1 of 2)

Religious “Conviction”: A Prisoner’s Struggle to Practice His Faith Behind Bars

Ashley Merritt
J.D. Candidate, 2017
Valparaiso University School of Law

For the Muslim community, Ramadan is a month-long celebration filled with peace and patience. But in 2010, Michael Thompson’s Ramadan was anything but peaceful. Thompson sued prison officials at the Waupun Correctional Institution in Wisconsin for violating his First Amendment right to freely exercise his religion, and he recently won his appeal before the Seventh Circuit.

Each day during the month of Ramadan, Muslims do not eat or drink anything between sunrise and sunset. The prison normally accommodates this practice by providing Muslim prisoners with “meal bags”. Each Ramadan meal bag contains two meals: the post-sunset dinner and the next morning’s pre-sunrise breakfast. According to the prison’s policies, a prisoner who eats in the cafeteria during Ramadan forfeits his or her right to receive meal bags for the rest of the month.

On August 11, 2010 – the first day of Ramadan – Thompson began his month-long fast and received his meal bags on time for several weeks. However, on August 21, certain events interrupted their delivery. While on his way back to his cell early that day, Thompson was handed a meal bag from a prison guard. Upon arriving at his cell, Thompson found another meal bag waiting for him. Because Thompson could not leave his cell to return the extra bag, he left one of the bags unopened for a guard to retrieve. However, one prison guard claims to have seen Thompson eating from both meal bags. After accidentally receiving two meal bags in one day, Thompson did not receive a meal bag on August 21 or 22, even though he remained on the list of eligible inmates. In effect, he began to suffer from hunger pains, fatigue, and exhaustion, and thus felt pressured to eat at the cafeteria. However, he knew that if he did, he would give up his meal bag privileges. Sometime during these two days, Thompson also missed one of his morning prayers because he felt so ill. As a result of these events, he was not able to properly observe Ramadan.

Thompson filed a lawsuit under 42 U.S.C. § 1983 against the prison officials that he felt were responsible for violating his First Amendment rights. After A magistrate judge granted the defendants’ motion for summary judgment, and Thompson appealed.

Ultimately, the Seventh Circuit vacated the previous judgment and remanded the case back to the lower court to make factual determinations, such as the reason for withholding Thompson’s meal bags and whether or not he remained on the meal bag list. The Court also held that there was enough evidence from which a reasonable jury could rule in favor of Thompson.

In its analysis, the Court considered whether the denial of meal bags placed a substantial burden on Thompson’s free exercise rights. Essentially, the Court defined a “substantial burden” as one that “put[s] a substantial pressure on an adherent to modify his behavior and to violate his beliefs.” Using this definition, the Court held that Thompson’s free exercise rights were substantially burdened when he did not receive his meal bags because without them, he was forced to choose between foregoing adequate nutrition or violating a central pillar of his religion. In other words, forcing an inmate to choose between daily nutrition and religious practice is a substantial burden. Writing for the three-judge panel, Judge Rovner further reasoned that in addition to not receiving a meal for more than 55 hours, Thompson had no idea whether he would be put back on the Ramadan meal bag list and get regular food. This uncertainty contributed to the pressure on him to go to the cafeteria and left him so anxious that he was unable to practice Ramadan in its entirety.

How should society feel about the religious rights of inmates? From one point of view, many people believe that inmates have forfeited their rights when they are convicted of committing a crime. And some claim that allowing religious freedoms in prisons could open a can of worms where inmates use religious accommodation as an excuse for other, spurious requests. On the other hand, it can be argued that prisoners should be encouraged to practice their religious faith while incarcerated for its intrinsic value. Faith may provide them with a sense of purpose and could also help reintegrate prisoners who will eventually be released back into public communities. Certainly there are legitimate restrictions on the religious rights of prisoners, but as long as that practice does not compromise a prison’s security, inmates should be entitled to freely exercise their constitutional rights.

Indiana’s Personalized License Plates: Government Speech or Individual Expression?

Ashley Merritt
J.D. Candidate, 2017
Valparaiso University School of Law

Today, specialty license plates are commonly seen on cars and trucks across the country. Some display amusing or entertaining messages, while others are simply used as a unique way to identify a driver’s vehicle. Earlier this month, the Supreme Court of Indiana considered a case dealing with the intersection of state-issued specialty license plates and the freedom of speech. In his opinion, Justice Dickson held that Indiana’s personalized license plates are government speech and therefore immune from First Amendment attacks.

In Indiana, owners of registered vehicles can apply to the Bureau of Motor Vehicles (BMV) for personalized license plates (“PLPs”). Ind. Code § 9-18-15-1. PLPs display a combination of letters and/or numbers which identifies the vehicle and is “requested by the owner or lessee of the vehicle and approved by the bureau.”

Over the years, PLPs in Indiana have become quite popular. For example, between January 1, 2011 and July 19, 2013, the BMV received 71,452 applications for personalized plates.

After receiving an application for a PLP, the BMV has the authority to reject a PLP that: (1) contains a connotation offensive to good taste and decency; (2) would be misleading; or (3) is otherwise determined by the bureau to be improper for issuance. Ind. Code § 9-18-15-4(b). Similarly, the BMV can revoke a previously issued PLP if it receives a substantial number of complaints about the PLP’s message, or if the PLP contains references or expression that Indiana law prohibits. 140 IAC 2-5-4(a).

A class of Indiana citizens, all of whom had their applications reject or PLPs revoked, challenged the constitutionality of the PLP program, claiming that the BMV’s decision-making process violates the First Amendment and the Due Process Clause of the Fourteenth Amendment. The BMV argued that its PLP decision-making process was constitutional because personalized license plates are a form of government speech.

Initially, the lawsuit arose two years ago when the BMV refused to renew a license plate that said “0INK.” The American Civil Liberties Union (ACLU) of Indiana sued the BMV on behalf of Rodney Vawter, who claimed the message was an innocent attempt to make light of his work as a police officer.

In its opinion, the Indiana Supreme Court relies on several factors from Walker v. Tex. Div., Sons of Confederate Veterans, Inc. to determine if PLPs are a form of government speech. In Walker, the Supreme Court considered whether Texas’s specialty license plates were government speech. First, the Court considered whether the government has historically used the medium to speak to the public. In its analysis, the Court reasoned that license plates have long been used for government purposes, such as providing identifiers for the public and law enforcement. The Court further reasoned that license plates have historically been used as a way to communicate between states. For example, all fifty states have unique graphics and slogans on their plates which put drivers and law enforcement on notice as to where the driver is from and where the vehicle is registered.

Next, the Court looked at whether, in the public’s mind, the message is closely identified and associated with the state. Here, the Court reasoned that the PLPs technically belong to the BMV and display “Indiana” at the top of every plate, indicating that the state of Indiana owns and issues them. Therefore, the public reasonably associates PLPs with the government.

Finally, the Court examined the degree of control that the state maintains over the messages conveyed. Analyzing these factors together, the Court held that PLPs are a form of government speech. Accordingly, it found that the BMV did not violate the First Amendment right to free speech or the Due Process Clause of the Fourteenth Amendment.

Under Walker’s reasoning, personalized license plates can be seen as a form of government speech because the state is issuing them. And the state certainly has a legitimate interest in rejecting or revoking inappropriate PLPs. But how can a personalized license plate really be government speech when the individual, rather than the state, is using it as a form of self-expression? If only there was some sort of happy medium between government speech and individual expression.

Indiana’s “Selfie” Voting Law Scrutinized By Federal Judge

Indiana ballot selfie law

Ashley Merritt
J.D. Candidate, 2017
Valparaiso University School of Law

Thinking about snapping a picture at the polls this year? Think again.

As of July 1, 2015, under Indiana law, it is a felony for voters to take a photograph of their ballots while at a polling place and/or distribute or share such photos on social media. Ind. Code § 3-11-8-17.5. This law has commonly been referred to as Indiana’s “ballot selfie law,” referencing the modern trend in self-photographs taken by smartphone users.

On August 27, 2015, the ACLU of Indiana filed suit against the Indiana Secretary of State, the Indiana Election Division, and the Superintendent of Indiana State Police, claiming that the law is unconstitutional because it violates the First Amendment. Shortly thereafter, the ACLU of Indiana also sought a preliminary injunction enjoining the state from enforcing the ban at election polls this year.

Still thinking about snapping a selfie while at the voting polls in November? You may be in luck after all.

A federal judge in the U.S. District Court for the Southern District of Indiana recently struck down the law banning ballot “selfies.” Judge Sarah Evans Barker ruled that the law is a content-based restriction on speech because it requires the government to examine the content of images and photos in order to determine whether a voter has violated the statute. She also stated that content-based regulations of speech require a strict scrutiny analysis, where a law will only be upheld if the government can prove it serves a compelling government interest and is narrowly tailored to achieve that interest.

As Judge Barker explained, the ballot “selfie” law does not survive strict scrutiny because it neither serves compelling state interests nor is narrowly tailored to achieve those interests. She reasoned that the state does not have a compelling interest because it has failed to demonstrate any current, ongoing, or actual problem related to the use of smartphones or digital photography during elections. She also reasoned that even if the state did have a compelling interest, the law is not narrowly tailored because it is covers far more speech than necessary to accomplish its goals.

Effective immediately, the ruling enjoins the State from enforcing the ban. This means that voters are free to post pictures of their ballots at the polls this year.

On one hand, the statute is reasonable in the sense that it aims to protect voter privacy and secrecy. On the other hand, it lacks enforceability and burdens political speech. What if absentee voters posted a picture of their ballot before sending it in the mail? How is taking a picture of your ballot at the polls different from wearing a political button or putting a political bumper sticker on your car?

Chicago’s Rising Weed Problem – Literally

View of the Discount Inn property, from Judge Posner’s opinion.

View of the Discount Inn property, from Judge Posner’s opinion.

By: Ashley Merritt
J.D. Candidate 2017
Valparaiso University School of Law

No, not that kind of weed. In a recent opinion written by Judge Richard Posner, the Seventh Circuit Court of Appeals upheld Chicago’s weed ordinance yet again.

Chicago’s weed ordinance provides that “any person who owns or controls property within the city must cut or otherwise control all weeds on such property so that the average height of such weeds does not exceed ten inches. Any person who violates this subsection shall be subject to a fine of not less than $600 nor more than $1,200.” It also states that “each day such violation continues shall constitute a separate and distinct offense to which a separate fine shall apply.” Municipal Code of Chicago § 7-28-120(a).

Plaintiff Discount Inn, Inc., claims to have been fined over twenty times for violating this ordinance. It sued the city of Chicago claiming that the ordinance imposing fines on landowners who allow tall, overgrown weeds to take over their property is unconstitutional. Specifically, it claimed that the ordinance violates the Eighth Amendment’s prohibition of “excessive fines” and the First Amendment’s right to free speech and expression.

In the opinion, Posner first points out that the Eighth Amendment does not apply to state and local governments because it has not been incorporated through the Due Process Clause. Even if it did apply to the city, he says, the fines are not unconstitutionally excessive.

Posner also rejects the plaintiff’s First Amendment claim and even goes as far as implying that it was frivolous. “It’s not as if the plaintiff invented, planted, nurtured, dyed, clipped, or has otherwise beautified its weeds, or that it exhibits or intends or aspires to exhibit them in museums or flower shows,” Posner writes. “Its weeds have no expressive dimension. The plaintiff just doesn’t want to be bothered with having to have them clipped.”

He reasons that if the court allowed the plaintiff to make this argument, it would lead to a slippery slope in which Chicago residents were free to throw garbage on their front lawn, graze sheep there, and play loud music 24 hours a day – all in the name of the First Amendment.

Posner also takes the opportunity to advise attorneys representing future litigants to provide background information about their clients. He states that nowhere in the briefs or the record was there any information about Discount Inn except that it is incorporated in Illinois and its address is in the town of Skokie, Illinois.

Posner attempted to learn more about the property owner, but his search was unsuccessful. Although it did not prevent the court from rendering its opinion, practically all the court knew about the plaintiff was that it owned real estate in Chicago. The court did not even have any specific information about the plaintiff’s violation of the ordinance.

Thus, Posner articulated the importance of providing judges with enough background information on your client. The moral of the story is if you want to win a case, give the court enough information to rule in favor of your client.

In this case, the plaintiff’s First Amendment claim was unwarranted. But how would the city deal with residents who refuse to cut overgrown weeds as a form of protest against the ordinance? Would this be considered a valid First Amendment argument? Under Posner’s reasoning, this could create even more “snakes in the grass” for the City of Chicago as well as the court system.

First Amendment Rights of Civil Detainees


By: Ashley Merritt
J.D. Candidate 2017
Valparaiso University School of Law

On September 14, 2015, the Seventh Circuit Court of Appeals ruled that the state of Illinois can ban sex offenders from having video game consoles, even when they are in civil detention rather than prison. Judge Rovner wrote the opinion for the three-judge panel.

The First Amendment provides, in part, that “Congress shall make no law… abridging the freedom of speech.” However, like many other fundamental rights found in the Bill of Rights, the right to free speech is not absolute.

According to Illinois law, a “sexually violent person” is someone who has been convicted of a sexually violent offense and “suffers from a mental disorder that makes it substantially probable that the person will engage in acts of sexual violence.” 725 ILCS 207/5(f). Under Illinois’s Sexually Violent Persons Commitment Act, someone who is found to be a sexually violent person in a civil proceeding is authorized to be committed to the custody of the Illinois Department of Human Services for control, care, and treatment until he or she is no longer considered a sexually violent person.

Eugene Brown was convicted of five counts of aggravated sexual assault for raping women and also diagnosed with a paraphilia: the sexual attraction to non-consenting women. In May 2003, Brown was approaching the end of his prison sentence in the Illinois Department of Corrections when the State filed a petition to involuntarily commit Brown for treatment under the Act, alleging that his mental disorders created a substantial probability that he would engage in acts of sexual violence. Eugene Brown is now civilly committed to the Rushville Treatment and Detention Center in Illinois.

Brown and 17 others sued the facility, alleging that certain policies restricting their access to movies, video games, and video game consoles violate the First Amendment. Rushville maintained that these policies were necessary because of their rehabilitation and security interests.

While Brown argued that strict scrutiny should be used to determine the constitutionality of the bans, the Seventh Circuit Court of Appeals disagreed. The Court relied on Turner v. Safley to support its claim that a reasonable-relationship standard governs the First Amendment rights of civil detainees. In Turner, the Supreme Court held that prison regulations infringing on the constitutional rights of inmates are valid if they are reasonably related to legitimate penological interests. In determining the reasonableness of such regulations, the Court explained there must be a valid, rational connection between the prison regulation and the legitimate governmental interest put forward to justify it. However, the Court also noted that the reasonable-relationship standard should be modified as necessary because there are key differences between prisoners and civil detainees, including the purposes of their confinement.

In applying the rational-relationship standard, the Court found that summary judgment on the video game consoles was proper for two reasons. First, the game consoles are capable of accessing the internet which would allow detainees to contact victims of their crimes and therefore the ban furthers the state’s interest in protecting the public. Second, civil detainees could possibly use the consoles to download, share, and store illegal pornography, such as child pornography. Therefore, the ban on video game consoles promotes the state’s interest in preventing crime. On the other hand, the Court found that the detention center’s evidence relating to the move and video game ban was insufficient to justify summary judgment on a First Amendment claim.

Because Illinois’s Sexually Violent Persons Commitment Act is a civil law rather than a criminal law, the state’s interests must be balanced against First Amendment protections. It is important to remember that although civil commitment statutes do not apply the same strict standards of the criminal justice system, First Amendment rights are afforded the most protection. Perhaps the Rushville facility’s ban on movie and video games should be determined on a case-by-case basis in order to safeguard both the state’s interests and the interests of civil detainees.

Conflict Over Contraceptive Mandate Drags On


By: Duke Truong
J.D. Candidate, 2017
Valparaiso University School of Law

On Sept. 4, 2015, the Seventh Circuit decided, yet again, on the issue of whether the contraceptive mandate violates the sincere beliefs of nonprofit religious groups.  Nonprofit religious groups continue to challenge the mandate while seeking for an “exemption” instead of an “accommodation.”  The plaintiffs in Grace Schools et al. v. Burwell argued the Patient Protection and Affordable Care Act  of 2010 (ACA) places undue burdens on the free exercise of their First Amendment right and that it violates the Religious Freedom and Restoration Act of 1993 (“RFRA”).  Plaintiffs insist the mandate infringes on their sincere religious exercise against facilitating a wrongful act of others (i.e., the use of birth control by employees through health plans funded by religious employer).

After the district court granted plaintiff’s preliminary relief against the mandated coverage on Dec. 3, 2014, the government appealed to the Seventh Circuit.  The parties’ dispute centered on the “substantial burden” of the law.  When a law burdens a person’s exercise of religion, the government must proceed in the “least restrictive means” in order to further a “compelling interest.”  The plaintiffs objected to the mandate’s complicit orders because they believe their connection to destroying an embryo is an immoral act that imposes a substantial burden which violates the RFRA.  The Seventh Circuit denied this argument and stood firm with prior decisions.

The Seventh Circuit denied arguments of the University of Notre Dame and Wheaton College, decided May and July, 2015, respectively, where both schools sought preliminary injunctions on grounds that the ACA violated their religious beliefs and the First Amendment in providing birth controls of any kind to its employees and students.  In both cases, the court employed the substantial burden analysis and determined the contraceptive mandate did not infringe on their religious exercise.  A particular kind of religious belief – facilitating another person’s wrongful act – has no protection under the RFRA, declared the court.  But does the government have any business in discriminating against a certain belief and not others?  Should the court shift its focus to whether the government has pressured the religious group to give up a certain belief?

The government contends the contraceptive mandate imposes no substantial burden because it allows plaintiffs to opt for an “accommodation.”  To avoid fines, nonprofits who opposes the mandate must contact the Department of Health and Human Services and voice their objection or submit a EBSA Form 700.  After a nonprofit protest, the contracted insurers or third-party administrators are obliged to provide contraceptive coverage for the employees without co-pay.  However, the nonprofits are at odds with the accommodation because their health plans are used to fund contraceptive services to which they object.

In a forceful dissent, Judge Manion said the religious groups has no relief under the contraceptive provisions because the coverage is connected to the health plans that depended on their actions.  Judge Manion proclaimed, “the government’s stated interest is overbroad, underinclusive, and marginal at best.”  As the conflict over contraceptive mandate drags on, are decisions handed down by the court of appeals an unequal treatment of religious exercises?

7th Circuit Extends Second Amendment Rights to Unauthorized Aliens

Scott 9-5-15

By: Scott Johnson
Juris Doctor Candidate, 2016
Valparaiso University School of Law

MADISON, WI- Last month the United States Court of Appeals for the Seventh Circuit ruled on a seemingly narrow issue in the case U.S. v. Meza-Rodriguez when it considered, “Whether unauthorized aliens have rights under the Second Amendment?” However, this issue has much broader implications to the rights of many who live within our borders.

Many of our liberties apply only to legal citizens of the United States, but some like the freedom of expression, free speech, and protections against unreasonable searches and seizures extend to citizens and non-citizens alike. For example, even foreign tourists enjoy the protection against unreasonable searches. These constitutional rights extend to anyone within the jurisdiction of the United States including the 11.4 million undocumented immigrants living here.

The court per Chief Judge Diane Wood held that unauthorized aliens were “People” within the Second Amendment. The Seventh Circuit also ruled that the federal statute used to convict the defendant on being here illegally and possessing a firearm remained valid law.

Mariano Meza-Rodriguez’s parents brought him to the United States from Mexico when he was four years old. He grew up in Milwaukee, held employment there, and attended public schools in the city. Meza-Rodriguez never acquired the necessary paperwork to become a legal citizen. In 2012, Meza-Rodriguez was arrested following a bar fight in downtown Milwaukee. Though some witnesses claimed Meza-Rodriguez may have had a gun earlier that night, MPD only found a single .22 caliber round in his pocket. He was indicted under a federal law, specifically 18 U.S.C. § 922(g), which bans anyone in the country illegally, from possessing firearms or ammunition.

Like the Fourth Amendment, the Second Amendment suggests a right that belongs to “the People”. The Fourth Amendment guarantees, “The right of the people to be secure in their persons, houses, papers, and effects…” Similarly the Second Amendment protects, “The right of the people to keep and bear Arms…” This is significant because in Meza-Rodriguez, the government argued that an undocumented immigrant charged with violating a federal law was not part of “the People” who benefit from Second Amendment rights.

The Seventh Circuit dismissed the government’s argument holding, “There is no principled way to carve out the Second Amendment and say that unauthorized aliens or even all non-citizens are excluded.” The majority relies overwhelmingly on a Supreme Court decision from 1990 called U.S. v. Verdugo-UrquidezIn Verdugo-Urquidez, the Court held that, “Aliens receive constitutional protections when they have come within the territory of the United States and have developed substantial connections with this country.” Meza-Rodriguez had lived in this country for over a decade where he developed close relationships with family, friends, and employers, all which signify his ties to the community.

Like the First, Fourth, and Fourteenth Amendment, the founders used the term “the People” instead of word “Citizen” in the Second Amendment. These two words have distinct constitutional meanings and cannot be used interchangeably. The word “Citizen” is used extensively in Article II of the Constitution to define who can vote and run for office. This distinction shows the founders intent of using the term “the People” to define more than just legal citizens but anyone within the jurisdiction of the United States.

There is an inherent danger by not defining people like Meza-Rodriguez asthe People” under the Constitution. The issue is far wider than simply a case about gun-rights because it provides legitimacy to nativists in denying liberties and protections to non-Citizens. If aliens are not considered “ the People” under the Constitution it could open up further degradation to the rights of millions.

This may seem like a slippery slope argument but a secondary holding in Verdugo-Urquidez was that the Fourth Amendment rights of aliens depend on their affinity to the United States. The court upheld the government’s illegal search of Verdugo-Urquidez’s home because he did not establish enough connections to the United States. Some will argue that this ruling will give illegal immigrants the green light to carry weapons free from government regulation. However, these skeptics miss the second portion of this ruling. The Seventh Circuit never overruled the constitutionality of the federal statute on aliens possessing guns or ammunition.

The significant holding was that unauthorized aliens are now considered “the People” within the definition of the Second Amendment. Nonetheless, government regulation of firearm ownership is certainly valid according to the Supreme Court and is based on numerous factors including past criminal history and mental illness. This decision does little to progress the agendas of either the NRA or gun control advocates. The significance of Meza-Rodriguez lies in its potential consequences for undocumented persons. Specifically in regards to the First, Fourth, and Fourteenth amendments if unauthorized aliens are not considered “the People” under the Constitution it would lead to further police harassment of millions.

Joseph Bugni, Meza-Rodriguez’s attorney plans to ask all nine judges of the Seventh Circuit to review the decision. His argument is that the court’s holding contradicts itself in regards to the statute and the Second Amendment. The fact several federal courts are divided on this question and the contradiction in the law itself make it very likely that this issue will eventually appear in front of the Supreme Court.

Revisiting Indiana’s Religious Freedom Law

Indiana Flag

By: Alex Salvi
Valparaiso University Law School
J.D. Candidate, 2016

On April 2, Indiana Gov. Mike Pence signed into law a revised version of the controversial Religious Freedom Restoration Act (read more about it here). The revisions grant new protections to LGBT employees, tenants and customers, lawmakers said at a news conference in the Indiana Statehouse. The fix, however, does not apply to churches or schools.

The fix features what lawmakers call “anti-discrimination safeguards” by adding language to clarify that no “provider” or business—other than a church or church-affiliated school—may deny service to anyone on the basis of sexual orientation, race, religion or disability. A landlord may not discriminate against gay tenants, for example. The RFRA also does not negate any rights available under the state constitution.

Governor Pence signed Senate Bill 101, also known as the “Religious Freedom Restoration Act,” making the law effective. The bill was approved by the Republican-controlled House by a 63-31 margin and reached the Governor’s desk to be signed. The bill was modeled on the federal Religious Freedom Restoration Act (RFRA). Indiana’s law expands protections to disputes between private citizens and corporations, in accordance with the 2014 Hobby Lobby decision.

Indiana’s original Religious Freedom Restoration Act, which Pence signed the week prior, would have allowed any individual or corporation to cite religious beliefs as a defense when sued by a private party. The law was originally written so broadly that many businesses and LGBT advocates argued that it would open the door to discrimination.

Legislators immediately drew heavy fire not only from gay rights activists but also from a wide range of large companies, including Apple, Levi’s, the Gap, Angie’s List, Eli Lilly, Twitter and Yelp. Business owners and the NCAA—which is headquartered in Indianapolis—said that if the law was not changed, they would reconsider whether or not to participate in business in the state. In response, Indiana revised the law and has since hired a public relations firm to repair the damage done to the state’s image by the law.

Not everyone is pleased with the revised bill, however. “Our position is that this ‘fix’ is insufficient. There was no repeal of RFRA and no end to discrimination of homosexuals in Indiana,” said Bill Oesterle, the CEO of Angie’s List. Employers in most of the state of Indiana can fire a person simply for being Lesbian, Gay, Bisexual, Transgender or Questioning.  That’s just not right and that’s the real issue here. Our employees deserve to live, work and travel with open accommodations in any part of the state.”

A similar scramble was underway Thursday in Arkansas, where Governor Asa Hutchinson signed a revised version of a religious liberties bill that had drawn similar blowback, prompting him to call for revisions. The bill he signed Thursday makes it harder for businesses to use religion to justify denying services to gays.

While the Indiana legislators did address the issue of discrimination in the bill, they did not repeal the bill altogether. It doesn’t accomplish what the law’s critics wanted most: Adding sexual orientation to the list of categories protected by Indiana’s anti-discrimination law. Therefore, the new language does nothing to expand LGBT rights from where they were prior to Pence’s signing of the RFRA. LGBT discrimination is still legal in Indiana, since it lacks comprehensive protections on the basis of sexual orientation and gender identity.

Weighing Religious Freedom against Non-Discrimination


Religious FreedomBy: Alex Salvi
Valparaiso University Law School
J.D. Candidate, 2016

Last week Governor Pence signed Senate Bill 101, also known as the “Religious Freedom Restoration Act,” making the law effective. The bill allows private parties—including businesses open to the public—to invoke a religious defense in legal cases. The bill was approved by the Republican-controlled House by a 63-31 margin and reached the Governor’s desk last Monday.

Despite gubernatorial vetoes by a number of other governors of similar laws, Gov. Mike Pence resisted calls to veto the bill Monday evening. He issued a statement that the measure, “is about respecting and reassuring Hoosiers that their religious freedoms are intact. I strongly support the legislation and applaud the members of the General Assembly for their work on this important issue.” Other Republican leaders, like presidential hopeful Senator Ted Cruz and Governor Jeb Bush, have also backed Pence and the legislation.

The bill is modeled on the federal Religious Freedom Restoration Act (RFRA). Indiana’s law expands protections to disputes between private citizens and corporations, thanks to the 2104 Hobby Lobby decision. There, the Court ruled that closely-held corporations owned by shareholders with religious objections do not have to participate in arrangements under the Affordable Care Act resulting in their employees’ being covered for contraceptives. Senate Bill 101 attempts to prohibit a governmental regulation from substantially burdening an individual’s free exercise of religion, by allowing exemptions from legal requirements for  persons having religious objections to the applicable law unless the law is the “least restrictive means possible to further a compelling governmental interest.

Indiana’s S.B. 101, is broader than federal law RFRA (and also broader than many other state RFRA’s). While the Indiana bill says that a “governmental entity may not substantially burden a person’s exercise of religion,” it also applies those rules to businesses and interactions between private parties “regardless of whether the state or any other government entity is party to the proceeding.”

So, what legal topic or issue does that raise? Indiana’s RFRA could apply to any legislation or regulation, but many believe that the motivation for its passage is to allow individuals and businesses who object to same-sex marriage to claim exemptions from requirements that they not discriminate against same sex couples.

“The claims that the Religious Freedom Restoration Act is about licensing discrimination are completely off-base and misinformed. This legislation is simply about preventing the government from trampling on the religious liberties of Hoosiers” David Long, Indiana Senate President (R-Ft. Wayne) said in response to these allegations. “It does this my establishing a strict test for courts to use when reviewing government actions that may impact religious freedom. At least 30 states and the federal government already have this safeguard, and I support providing the same protections here in Indiana.”

This legislation is extraordinary in many ways, but the challenge underlying it is the tension between governmental regulations and free exercise, and then, more intensely free exercise versus a competing claim not to be the object of illegal discrimination. Consider also the effect on employees. When a person goes to work for a company, that individual may be affected by the belief system of its owners, but with no particular recourse under the law if the employee’s own belief system is violated. Employees who work for the corporations asserting free exercise exemptions seem to be overlooked. Finally, a background assumption of the bill is problematic. It is the notion that it would provide a workable, even common, religious exemption right from state regulations. And, there remains a substantial doubt as to its constitutionality, because the Supreme Court will be ruling on whether states have the constitutional right to ban same-sex marriage. If they do not, Indiana’s own RFRA is jeopardized.

Many employers may wish to qualify for Indiana’s state RFRA. But, courts have typically required compliance with content-neutral, generally applicable laws whether the regulated entity  agrees or not. Society cannot function if persons may opt out of things that offend them. As Galileo once said, “I do not feel obliged to believe that the same God who has endowed us with sense, reason, and intellect has intended us to forgo their use in the discussion of religion.”

Many people, business, and civil rights groups have expressed their outrage over the new law. Connecticut Gov. Dan Malloy on Monday signed an executive order banning state-funded travel to Indiana, and the mayors of San Francisco and Seattle enacted similar bans. Apple, the NCAA and other companies have joined opposing groups in speaking out against the law.

The backlash has resulted in negotiations about how to fix the law. Governor Pence and members of the legislature are meeting this week in an attempt to balance the competing interests of business leaders and social conservatives. Pence issued a statement, “After much reflection and in consultation with leadership in the General Assembly, I’ve come to the conclusion that it would be helpful to move legislation this week that makes it clear that this law does not give businesses a right to deny services to anyone.”


Foxxxy Ladyz Scores Split Decision Against Village of Dix

OLYMPUS DIGITAL CAMERAOn March 10, the Seventh Circuit Court of Appeals issued its ruling in Foxxxy Ladyz Adult World v. Village of Dix, which pits a small conservative town in Illinois against a strip club. Judge Flaum wrote for the three-judge panel.

The Village of Dix is a town of less than 500 people, straddling Interstate 57 in southern Illinois. The Village is not merely a conservative place; it is that increasingly rare phenomenon even in the rural Midwest: a “dry town,” where the sale of alcohol is strictly prohibited. (Fans of irony will note that Dix is also the hometown of the founder of NORML.)

To say the least, a dry town is not a welcoming place for adult entertainment, let alone an establishment like Foxxxy Ladyz, which is BYOB and offers fully nude dancing. One remarkable thing about this case, then, is that the strip club seems to have been operating in the Village of Dix for several years before the village board took action. (The village enacted a series of ordinances targeting the strip club in 2010, but did not serve Foxxxy with a cease and desist notice until 2013.)

That delay might have been at least in part due to a factor that also weighed in the Seventh Circuit’s decision: the strip club was located on the opposite side of I-57 from the residential areas of the town. Perhaps, for a time, out of sight was out of mind. But that distance also led the Seventh Circuit to question whether Foxxxy was really imposing the kind of harm needed to justify the town’s ordinance.

When the town finally did take action in 2013, Foxxxy sued in the Southern District of Illinois under 42 USC §1983, arguing that its constitutional rights had been violated. In the district court and also on appeal, the core issue was whether the town’s ordinance against nude dancing violated the First Amendment.

The district court dismissed the suit under Rule 12(b)(6), ruling that was sufficient for Dix’s ordinance to be modeled on ones that had been approved elsewhere. The Seventh Circuit reversed, allowing the suit to live to fight another day in the Southern District.

In reaching its decision, the Seventh Circuit sorted through a long series of fractured plurality opinions on this question from the Supreme Court. Under these opinions, nude dancing is symbolic expressive conduct. As a result, any governmental restriction on nude dancing is subject to “intermediate scrutiny”: the restriction must further an important government interest, and must be substantially related to that interest.

Turning to the situation in Dix, the Seventh Circuit looked closely at two of its own previous rulings on this issue from 2009, in which it ruled that a municipality trying to impose these kinds of restrictions on adult entertainment must “demonstrate a reasonable connection between the cited evidentiary basis for its regulation and the specific facts and circumstances on the ground.”

The mere fact that such ordinances had been upheld in other towns was not enough. Rather, Dix will have to show that the ordinance would serve a legitimate interest in its case as well.

Judge Flaum emphasized that the town might well prevail in the end. But at this stage of the case, he wrote, the village “has not pointed to sufficient secondary effects evidence to permit disposing of plaintiffs’ claim altogether.”

Foxxxy had also brought suit against the town’s new ordinance against BYOB establishments. But since merely preserving the town’s dry status was enough to provide a rational basis for the ordinance, Foxxxy lost on that one. At least according to the Seventh Circuit, bringing your own beer is not an expressive activity.

This case shows some of the oddities that arise in constitutional law. Surely, like almost any town that wants to prevent adult entertainment within its borders, Dix isn’t really concerned about impacts like increased crime or littering. Even if research showed conclusively that the strip club’s net impact was zero, the town would still want it gone. But it can’t win in court unless it does a good enough job of pretending that those secondary effects were the real reason for its ordinance.

What do you think? Should nude dancing be protected as speech? And if nude dancing is speech, should municipalities be required—or allowed—to twist themselves around in moves worthy of an exotic dancer so that they can restrict it?

By: Samuel Henderson
Valparaiso University Law School
J.D. Candidate, 2016

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