Culture wars tied to some, not all, lower-level religion-related court cases
County clerk, baker back in spotlight over LGBTQ disputes
Court cases involving education and LGTBQ issues have dominated litigation involving the religion clauses of the First Amendment in recent years, and that pattern continues as 2024 gets under way.
Courts in California and Oklahoma are considering religion-related legal actions affecting school funding, and a dispute in Maryland involves LGTBQ-sympathetic curriculum. Meanwhile, a Colorado baker who went all the way to the Supreme Court a few years ago to defend his right to not bake a cake for a gay wedding is back in court in a separate case.
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But not all the religion-related court cases involve the culture wars: One involves Native Americans who are trying to protect what they see as sacred lands.
Here are some of the key religion-related court cases, cases that have not reached the Supreme Court level, to watch in the coming months:
Federal Trade Commission v. Grand Canyon University (alleged fraud)
One of the largest Christian universities in the country is facing accusations of fraudulent practices by the federal government.1
The Federal Trade Commission recently sued Grand Canyon University; Grand Canyon Education Inc., a marketing company said to be the former owner of the university; and Brian Mueller, who heads the school and the corporation. The FTC is seeking an injunction to prevent the allegedly fraudulent practices as well as unspecified “monetary and other relief.”
The lawsuit shares allegations in common with the reasons behind a proposed fine by the Department of Education. Presumably, a resolution of the FTC suit would also resolve the dispute with ED.
The FTC alleges that GCU:
Has deceived prospective doctoral students about the cost and course requirements of its doctoral programs.
Claims to be a nonprofit even though it is operated for the benefit of the for-profit Grand Canyon Education and its investors.
Used abusive and illegal telemarketing calls in an effort to boost enrollment.
The suit was filed in the U.S. District Court of Arizona.
The school has yet to file a formal response to the lawsuit. But Mueller told the Christian Post that the FTC’s action was the “height of absurdity” and that “GCU is being singled out in a blatant example of selective enforcement by this federal agency.”
Ermold v. Davis (same-sex marriage)
Liberty Counsel, an organization that often supports conservative Christian legal causes, has announced that it will appeal the verdict in a case against Kim Davis, the Kentucky county clerk who refused to marry a same-sex couple after her office was required to do so by the Obergefell v. Hodges Supreme Court decision in 2015. Davis had refused to perform the marriage on religious grounds, although the couple was able to marry later.
A jury last year had awarded plaintiffs David Ermold and David Moore $50,000 each for Davis’s refusal to marry them, and the United States District Judge David L. Bunning of the Eastern District of Kentucky followed up by awarding $260,084.70 in attorney fees and expenses.
Joseph Buckles, an attorney for the couple, told the Washington Post that he was pleased with the latest ruling, but “it all came at a cost to my clients. Their life was put under a microscope, every detail about them was brought into court. They became celebrities for a cause they never chose.”
A statement from Liberty Counsel, meanwhile, said the “verdict is unsound and easily sets this case up for an eventual route to the U.S. Supreme Court where religious freedom will be central to the argument along with the issue that the 2015 case of Obergefell v. Hodges was wrongly decided and should be overturned.”
Masterpiece Cakeshop v. Scardina (freedom of expression)
Jack Phillips, the Colorado baker who won an incomplete victory2 at the U.S. Supreme Court in 2018 over his refusal on religious grounds to bake a wedding cake for a same-sex wedding, is now in court over his refusal to bake a cake for the celebration of a gender transition.
The Colorado Supreme Court agreed in October to accept his new case challenging his state’s interpretation of its public-accommodations law.
The law is the same one involved in U.S. Supreme Court’s 303 Creative v. Elenis last year in which the high court ruled that a Colorado web designer could not be required to create a website celebrating a same-sex marriage. The ruling was decided on narrow grounds, finding in effect that website content is inherently expressive and thus protected by the First Amendment provision on free speech.
In his appeal to Colorado’s top court, Phillips claims that the custom preparation of a cake also is expressive. And even if it isn’t, he says, the Colorado law violates his right not to promote views he disagrees with.
The customer denied the cake, Autumn Scardina, had testified at trial that an employee of Phillips had agreed to provide a custom pink cake with blue frosting, but that the agreement was withdrawn after Scardina mentioned how the cake would be used. In upholding the state’s finding that Phillips’ bakery had illegally discriminated, the appeals court found: “We conclude that creating a pink cake with blue frosting is not inherently expressive and any message or symbolism it provides to an observer would not be attributed to the baker.”
Mahmoud v. McKnight (school curriculum)
A case before the U.S. Fourth Circuit Court of Appeals involves the Montgomery County (Maryland) Public Schools’ addition in 2022 of storybooks that include LGTBQ characters. The district had originally allowed parents to withdraw their children from classes when the books were read out loud, but in 2023 the district changed its mind, making attendance mandatory.
A group of parents — they included members of the Muslim, Catholic and Ukrainian Orthodox faiths — sued to require the school district to opt their children out of the book readings. The parents sued sued partly on a claim of freedom of religious exercise.
A district court denied the parents’ request, finding that the school’s no-opt-out policy had not constituted a denial of religious exercise.
The Court of a Appeals heard oral arguments in December, so a ruling is expected later this year.
Apache Stronghold v. United States (sacred Native lands)
The full Ninth U.S. Circuit Court of Appeals held oral arguments last year in a case involving the rights of Native Americans to protect what they see as sacred ground. Specifically, a coalition of Apaches and other Native peoples known as the Apache Stronghold is seeking to prevent the transfer of federally owned Oak Flat in Arizona to mining interests. The transfer is required by a law passed by Congress in 2014.
Apache Stronghold, with the support of various religious-rights groups, claims that transfer of Oak Flat violates the Religious Freedom Restoration Act as well as an 1852 treaty. The Natives lost at the trial level and before an appeals panel, both of which found that the land transfer wouldn’t substantially burden the Natives’ religious exercise.
A decision is expected this year. An appeal to the Supreme Court appears likely regardless of the result.
Drummond v. Oklahoma Statewide Virtual Charter School Board (taxpayer-funded Catholic school)
The Oklahoma Oklahoma Statewide Virtual Charter School Board did the unthinkable last year — it signed a contract to provide full state funding for a planned virtual Catholic parochial school operated by a diocese. If courts approve the school, the school’s launch, scheduled for later this year, would obliterate constitutional norms and become the first fully taxpayer-funded church-run school in the U.S. in modern times.
The board took its action contrary to the advice of state Attorney General Gentner Drummond, who has since filed a lawsuit in his official capacity to prevent the school from opening. A separate lawsuit also has been filed by the American Civil Liberties Union, Americans United for Separation of Church and State, the Freedom from Religion Foundation and the Education Law Center.
The plaintiffs in both cases claim that the proposed school would violate the First Amendment to the U.S. Constitution and the Bill of Rights of the Oklahoma Constitution.
A hearing has yet to be scheduled before the state’s high court.
Loffman v. California Department of Education (funding for disabled students)
Parents whose children attend Jewish schools in California are challenging a state law that prevents their children’s schools from receiving funding for certain programs designed to help students with disabilities.
Under the state law, private schools have access to the public funds only if the schools do not have a religious character.
The parents lost last year at the U.S. District Court for the Central District of California. They have since filed an appeal at the Ninth Circuit Court of Appeals.
GCU is either the first or second largest Christian university in the U.S. along with Liberty University, depending on how the enrollment numbers are counted.
Philips won his case on technical grounds; the Supreme Court took no stand on whether he had broken the law.