The Volokh Conspiracy

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Free Speech

Do Religious Schools Have a Right to Exemption from State's Pronoun Policies?


From Friday's opinion by Judge Daniel D. Domenico (D. Colo.) in Darren Patterson Christian Academy v. Roy (for more on a different facet of the case and on the possible relevance, or not, of government funding, see this post):

"[T]he First Amendment protects an individual's right to speak his mind regardless of whether the government considers his speech sensible and well intentioned or deeply misguided and likely to cause anguish or incalculable grief. 303 Creative, LLC v. Elenis (2023). "Generally, too, the government may not compel a person to speak its own preferred messages." Indeed, the Court held in 303 Creative that Colorado could not compel a wedding-website designer to create websites that did not discriminate on bases similar to those at issue in this case.

In an even more on-point case, the Sixth Circuit held that a public university's requirement that professors use a student's preferred pronouns in the classroom amounted to a Free Speech violation. Meriwether v. Hartop (6th Cir. 2021). That case involved a professor plaintiff at a public university who declined to use a student's preferred pronouns, instead seeking to refer to that student in name only while referring to other students with pronouns corresponding to their biological sex. That plaintiff faced even more obstacles than Plaintiff would here in proving a Free Speech claim given the various doctrines limiting the ability of public-school teachers to bring First Amendment claims. Even still, the Sixth Circuit held that compelling such speech violated the professor's free-speech free exercise rights. [The words "free exercise" seem to have been erroneously included here by the court. -EV]

The Ninth Circuit has also arrived at a similar conclusion in a related context. They held that an Oregon anti-discrimination law requiring a "natural-born-female-only" beauty pageant to allow transgender contestants violated the pageant's expressive free-speech rights. Green v. Miss United States of Am., LLC (9th Cir. 2022). As the Ninth Circuit noted, this accorded with its "long-standing hesitation to enforce anti-discrimination statutes in the speech context."

Given these authorities and Defendants' failure to rebut the substance of this claim at all, the Court finds at this time that Plaintiff is likely to succeed on the merits of its Free Speech claim at least as to part of its policies. The anti-discrimination provisions at issue here mirror those found in 303 Creative, Meriwether, and Green. And, if applied to Plaintiff in the ways it credibly fears (i.e., at least as to its policy regarding pronoun usage), those anti-discrimination provisions would likely be unconstitutional, as the similar provisions were found to be in the aforementioned cases.

Some more from the opinion on the underlying government program, and on the government's decision not to make any substantive First Amendment arguments (see here and here) and to focus instead on procedural arguments (which the court rejected in a separate part of the opinion).

This academic year Colorado implemented its new Universal Preschool Program—a program that allows certain preschoolers to attend the preschool of their choice for free. Plaintiff is a private, Christian preschool currently participating in the program. As a condition of participating in the program, schools like Plaintiff must agree not to discriminate on the basis of a number of statuses, including religion, gender, sexual orientation, and gender identity. Pursuant to its faith, however, Plaintiff … requires its staff and students to abide by certain policies determined by biological sex rather than gender identity…. Plaintiff seeks a preliminary injunction allowing it to continue participating in the program while abiding by its internal policies regarding … student conduct.

Here, Defendants have made no argument on the substance of any of Plaintiff's First Amendment claims. In their response to the preliminary-injunction motion, Defendants' arguments regarding this first injunction factor exclusively focused on standing and ripeness. The same is true in their reply. While Defendants assert that they "absolutely do not concede the merits and are prepared to defend the merits should this case move forward," they've provided no argument on the merits for purposes of the preliminary injunction motion. Thus, it seems, Defendants have effectively stipulated to Plaintiff's characterization of the law for purposes of the preliminary injunction motion for "merits" issues other than ripeness and mootness….

{In any event, Plaintiff has met its burden not only to show standing and ripeness but also a likelihood of success} on the merits of its Free Speech claim, at least to the extent that the state would require Plaintiff and its staff to use a student's or employee's preferred pronouns as a condition of participating in the program.

Note that the precedential force of this case is likely to be lessened in some measure by the state's not raising any substantive First Amendment arguments.

David Andrew Cortman, Jacob Ethan Reed, Jeremiah Galus, and Ryan Jeffrey Tucker (Alliance Defending Freedom) represent plaintiff.