6/3/1918: Hammer v. Dagenhart decided.
The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent | Est. 2002
Utah Law Forbids Public School Libraries From Having Any Books That "Describe" "Sexual Intercourse" Etc.
The Salt Lake Tribune (Courtney Tanner) reports that the Bible will be removed from Davis (Utah) School District elementary and middle school libraries, "for containing 'vulgarity or violence.'" A parent had asked, apparently as a protest against a recent Utah law that calls for removal of various school library books, that the Bible be removed; this seems to have been the response.
And the Utah law does seem to be remarkably broad, calling for removal from (among other things) school libraries of "sensitive material":
(2)(b) A public school may not: (i) adopt, use, distribute, provide a student access to, or maintain in the school setting, sensitive materials ….
{(1)(f)(i) "School setting" [includes], for a public school: … (B) in a school library ….}
"Sensitive material" is in turn defined to mean "an instructional material that is pornographic or indecent material as that term is defined in Section 76-10-1235," which is to say,
any material:
(i) defined as harmful to minors in Section 76-10-1201;
(ii) described as pornographic in Section 76-10-1203; or
(iii) described in Section 76-10-1227.
And Section 76-10-1227 provides, in relevant part,
(1) … (a) "Description or depiction of illicit sex or sexual immorality" means:
(i) human genitals in a state of sexual stimulation or arousal;
(ii) acts of human masturbation, sexual intercourse, or sodomy;
(iii) fondling or other erotic touching of human genitals or pubic region; or
(iv) fondling or other erotic touching of the human buttock or female breast….(2) (a) Subject to Subsection (2)(c), this section and Section 76-10-1228 do not apply to any material which, when taken as a whole, has serious value for minors.
(b) As used in Subsection (2)(a), "serious value" means having serious literary, artistic, political, or scientific value for minors, taking into consideration the ages of all minors who could be exposed to the material.
(c) A description or depiction of illicit sex or sexual immorality as defined in Subsection (1)(a)(i), (ii), or (iii) has no serious value for minors.
Journal of Free Speech Law: "Getting to Trustworthiness (But Not Necessarily to Trust)," by Prof. Helen Norton
Just published as part of the symposium on Media and Society After Technological Disruption, edited by Profs. Justin "Gus" Hurwitz & Kyle Langvardt.
The article is here; here's the Introduction:
Political scientist and ethicist Russell Hardin observed that "trust depends on two quite different dimensions: the motivation of the potentially trusted person to attend to the truster's interests and his or her competence to do so." Our willingness to trust an actor thus generally turns on inductive reasoning: our perceptions of that actor's motives and competence, based on our own experiences with that actor. Trust and distrust are also both episodic and comparative concepts, as whether we trust a particular actor depends in part on when we are asked—and to whom we are comparing them. And depending on our experience, distrust is sometimes wise: "[D]istrust is sometimes the only credible implication of the evidence. Indeed, distrust is sometimes not merely a rational assessment but it is also benign, in that it protects against harms rather than causing them."
Actors and institutions thus cannot control whether others trust them. So in this Essay, I focus not on how to encourage the public to trust the media, but instead on how to encourage the media to do what it can control—in other words, to behave in ways that demonstrate its trustworthy motives and competence.
To be sure, different communities find different behaviors indicative of trustworthiness, and thus the media's choice to behave in ways that some communities find trustworthy may simultaneously inspire other communities' distrust. For example, as demonstrated by an exhaustive study conducted by information and technology scholars Yochai Benkler, Robert Faris, and Hal Roberts, some contemporary media cultures value, and thus trust, media institutions that privilege truth-seeking—while others trust those that simply confirm identity:
Journal of Free Speech Law Publishing Symposium on "Media and Society After Technological Disruption"
The symposium was edited by Prof. Justin "Gus Hurwitz" & Prof. Kyle Langvardt, and will be published later this year as a book by Cambridge University Press.
The first panel, on Trusted Communicators, is up, at JournalOfFreeSpeechLaw.org; we'll be posting the other panels over the next several days. Here's the Introduction, by both of the editors:
The internet has remade both the media and the social institutions that surround the media. Speech was not cheap in the twentieth century. News organizations had to buy newsprint, paper, distribution networks, transmitters, spectrum licenses—all kinds of things that cost much more than a Facebook page—if they wished to reach an audience. But the few news organizations that could cover these costs held a safe market position, and from this perch, they wielded a great deal of epistemic and moral authority in their communities. They became "gatekeepers" with the power and the responsibility to decide what information, and what claims, were fit to print. Much of media law, and particularly First Amendment law, seems to have developed around the assumption that news organizations could and would play this gatekeeping role, and that the government should therefore rarely need to.
That world is gone. Competition from the internet and social media has decimated the business model that underwrote the twentieth century's gatekeepers. And those twentieth-century media institutions that have survived disruption—institutions such as the New York Times or the major television networks—are in no position to play gatekeeper. News consumers mostly get whatever flavor of "news" they wish, and individual speakers mostly decide what kind of speech is fit to post. There are gatekeepers in this environment, but they are institutions like Facebook, TikTok, or YouTube that bear little resemblance to yesterday's news giants and that wield their power in ways that lack any clear twentieth-century analog. The law is only beginning to catch up.
This project gathers sixteen scholars in law, media, technology, and history to consider these changes together. We divided into four groups of four, with each group considering one broad facet of the situation. The Essays gathered here as a symposium will ultimately be published as a book through Cambridge University Press, Media and Society After Technological Disruption.
Short Circuit: A Roundup of Recent Federal Court Decisions
Bridges to nowhere, a blindfolded surprise, and a threatening smirk.
Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.
New on the Short Circuit podcast: Section 2 of the 14th Amendment punishes states that abridge the right to vote by taking away their seats in the U.S. House of Representatives. Or at least that's what the Amendment was supposed to do, but the Census Bureau has never gotten around to doing its constitutional duty. So says special guest Jared Pettinato.
Woman Suing Cuba Gooding, Jr. Over Alleged Rape Can't Proceed as "Jane Doe" at Trial
The court had allowed her to litigate pseudonymously at earlier stages in the process, but just held that this doesn’t extend to trial.
From today's decision by Judge Paul Crotty (S.D.N.Y.) in Doe v. Gooding:
The Court previously … allow[ed] Plaintiff to proceed pseudonymously. However, in doing so, the Court noted that it was "skeptical that Plaintiff can overcome the presumption of public disclosure in the long run" and allowed for revisitation of the issue closer to trial. At a hearing on May 11, 2023, the Court once again raised the issue, and ordered Plaintiff to file a motion to maintain the pseudonym at trial. The Court now DENIES that motion, and ORDERS Plaintiff to file an amended complaint bearing her legal name.
Rule 10(a) of the Federal Rules of Civil Procedure mandates that pleadings contain the names of all parties. Fed. R. Civ. P. 10(a). Underlying this rule is the principle in favor of public access to court proceedings. See Lugosch v. Pyramid Co. of Onondaga (2d Cir. 2006) ("The presumption of access is based on the need for federal courts, although independent—indeed, particularly because they are independent—to have a measure of accountability and for the public to have confidence in the administration of justice."). When a Court considers the use of a pseudonym—depriving the public access to full information on the case—it must "balance[] the interests at stake in reaching its conclusion." …
As the Court previously noted, the prejudice a defendant faces when a plaintiff uses a pseudonym increases when the parties go to trial. When a plaintiff proceeds under a pseudonym, the Court risks "giving [her] claim greater stature or dignity or otherwise confusing or distracting the jury." Additionally, the use of a pseudonym risks confusing a jury, as "the jurors will likely construe the Court's permission for the plaintiff to conceal her true identity as a subliminal comment on the harm the alleged encounter with the defendant has caused the plaintiff."
Graduation Speeches, "Hate Speech," and the CUNY Law Controversy
There's been a good deal of comment about the City University of New York law school student graduation speaker (Fatima Mousa Mohammed) who devoted a good deal of her speech to harshly condemning Israel and "Zionism," as well as capitalism, the New York government, and America more generally. (I include the transcript of the speech and a link to the video at the end of this post.)
Beyond just the criticism, the CUNY Board of Trustees and Chancellor put out a statement saying,
Free speech is precious, but often messy, and is vital to the foundation of higher education.
Hate speech, however, should not be confused with free speech and has no place on our campuses or in our city, our state or our nation.
The remarks by a student-selected speaker at the CUNY Law School graduation, unfortunately, fall into the category of hate speech as they were a public expression of hate toward people and communities based on their religion, race or political affiliation.
The Board of Trustees of the City University of New York condemns such hate speech.
This speech is particularly unacceptable at a ceremony celebrating the achievements of a wide diversity of graduates, and hurtful to the entire CUNY community, which was founded on the principle of equal access and opportunity. CUNY's commitment to protecting and supporting our students has not wavered throughout our 175-year existence and we cannot and will not condone hateful rhetoric on our campuses.
A few thoughts:
Critical Letters Are True Friendship
In reading for my festschrift essay for John Witte ("The Influence of the Catholic Intellectual Tradition on the Common Law"), I ran across this fascinating paragraph by Anthony Grafton on how Johannes Kepler didn't publish a monograph on chronology (i.e., the study of historical dates) but instead developed his scholarship through letters, with Grafton including a great quote from Blake. Enjoy.
At first I regretted the absence of a Chronologia nova or a Great Chronology of the Old Testament--especially as it made the task of expounding Kepler's technical views on any particular subject diabolically complex. But gradually it has become clear to me that Kepler saw chronology, as he and his contemporaries saw some other subjects, as particularly appropriate for treatment in letters--especially letters that exemplified William Blake's principle, "Opposition is true friendship." Kepler described chronology as a field that profited particularly from the open exchange of opinions and criticism, and his own practice as a chronologer exemplified this view at every point. In fact, Kepler's chronological work represented an effort not only to establish the truth about the past but also to set out, systematically, the proper conditions for doing so--conditions that, as Kepler formulated them, had to do with the canons of discussion, often among scholars who belonged to opposing ideological camps.
Anthony Grafton, "Chronology, Controversy, and Community in the Republic of Letters: The Case of Keplar," in World Made by Words: Scholarship and Community in the Modern West (Cambridge, Massachusetts: Harvard University Press, 2009), 124.
If Lawyer Forces Client to Have Sex, When Can Law Firm Be Liable for Negligent Supervision?
"An attorney-client relationship between two adults does not present the same inherent danger or foreseeability" as "a relationship between an adult and a child in a religious organization."
From Ward v. Kutak Rock, LLP, decided Wednesday by the Appellate Court of Illinois (Justice Eileen O'Neill Burke, joined by Justices Margaret Santon-McBride and Jesse Reyes):
Plaintiff's amended complaint, which is at issue in this appeal, alleged that MacKelvie was an employee of Kutak Rock with "of counsel" status. In February 2021, plaintiff retained Kutak Rock and MacKelvie to represent her in an appellate probate matter. The parties had a contingency fee agreement under which MacKelvie's "hourly fee would be taken from any amount recovered by" him, and "no amount would be due or owing until and unless there was a recovery of money in the probate case."
However, the firm sent several bills to plaintiff, which she indicated that she could not pay, and MacKelvie responded that "there were other ways to pay for his services." MacKelvie then began a series of communications with plaintiff in which he said that he would only work on the appellate brief if plaintiff sent him naked photographs of herself. Plaintiff "felt pressure to send the naked photos of herself to [MacKelvie] as she needed the legal work to be completed in [a] timely fashion." In December 2021, MacKelvie demanded that plaintiff have sex with him at a hotel in Deerfield and said that he would not work on plaintiff's case if she refused. Plaintiff alleged that MacKelvie forced her to have sex with him and "engaged in unwanted and inappropriate sexual contact with [her] that amounted to assault and battery," which caused her to develop depression and post-traumatic stress disorder.
Plaintiff sued McKelvie personally and also Kutak Rock, on a "negligent supervision" theory:
The negligent supervision claim alleged that Kutak Rock had a duty "to exercise a reasonable degree of care and supervision in supervising and managing" MacKelvie, and a general duty to supervise its employees "to make sure that they engage[d] in appropriate behavior and follow the law and the employer's rules and procedures."
No, said the court:
On Religious Divisiveness and the Judicial Role
Justice Breyer thought the Establishment Clause authorizes judges to improve the tone of political discourse. It does not.
The Volokh Conspiracy team was kind enough to let me blog this week about a recent short paper of mine, "Justice Breyer and the Establishment Clause." In this final post, I will discuss what, in my view, is the justice's signature contribution to the law-and-religion conversation, namely, his claims that the Establishment Clause's primary purpose was is the avoidance of "political divisiveness along religious lines" and that church-state disputes should be decided by unelected judges in ways that, they hope will promote this purpose.
Justice Breyer's emphasis on the judicial management of strife, and his view that judges are authorized to invalidate actions of political actors that are predicted to have excessive potential for conflict-creation, animated his final Religion Clauses opinion, a 2022 dissent in Carson v. Makin. This view, though, is mistaken. I should confess, though, that I argued as much 17 years ago in an overlong and excessively annotated article that, it appears, did not convince the justice. "That concerns about 'political division along religious lines' are real and reasonable," I wrote, "does not mean that they can or should supply the enforceable content of the First Amendment's prohibition on establishments of religion":
Those who crafted our Constitution believed that both authentic freedom and effective government could and should be secured through checks and balances, rather than standardization, and by harnessing, rather than homogenizing, the messiness of democracy. It is both misguided and quixotic, then, to employ the First Amendment to smooth out the bumps and divisions that are an unavoidable part of the political life of a diverse and free people and, perhaps, best regarded as an indication that society is functioning well.
Unsuccessful Plaintiff Can't Get Case Retroactively Sealed, Despite Alleged Harm to Employment Prospects
The case had involved a doctor who had sued over his license being restricted based on allegations of mental incompetency.
From Dabiri v. Fed. of States Medical Bds. of the U.S., Inc., decided Wednesday by Judge Komitee (E.D. N.Y.) (and see the underlying 2009 opinion):
Fifteen years ago, the plaintiff, a medical doctor by trade, filed this action against Federation of States Medical Boards of the United States, Inc. ("FSMB"), a non-profit corporation representing medical boards in the United States, and General Medical Council ("GMC"), a United Kingdom-based public authority. He alleged that GMC deprived him of his right to due process by suspending his medical license without notice of hearing and then forwarding that suspension information to FSMB, which included it in reports of Plaintiff's medical disciplinary history. As alleged in the complaint and exhibits attached thereto, GMC's decision to restrict Plaintiff's license stemmed from an unfavorable determination of his mental competency, at the time, to practice medicine. Plaintiff filed all documents in this case publicly, and at no time while the case was still pending did he seek to move any under seal.
Both FSMB and GMC moved to dismiss the complaint, referring to Plaintiff's competency determination in their motion papers' summary of the relevant factual allegations. Judge Charles Sifton thereafter granted those motions on various grounds in March 2009. That opinion included a similar reference to the circumstances of Plaintiff's license suspension in its recitation of the complaint's allegations.
In 2022, plaintiff sought to seal the entire case, but the court said no:
Today in Supreme Court History: June 2, 1952
6/2/1952: Youngstown Sheet & Tube Co. v. Sawyer decided.
Thursday Open Thread
What's on your mind?
Personalized License Plates (e.g., 69PWNDU) Are Private Speech
Today's decision in Gilliam v. Gerregano (Tenn. Ct. App.) so holds (in an opinion by Judge Kristi Davis, joined by Judges Frank Clement and Neal McBrayer). This means that any restrictions on such plates can't be viewpoint-based or too vague, though clear viewpoint-neutral but content-based restrictions might be permissible.
Whether plaintiff can keep her 69PWNDU plate was thus not resolved, because the appellate court sent the case back down to the lower court for further proceedings. (The lower court had concluded that the license plates were government speech, and thus that the government's decision to reject a plate was completely unconstrained by the Free Speech Clause.) The appellate court's decision is in keeping with the trend among other courts, see, e.g., here, here, and here; those cases conclude that, while the designs of license plates are government speech, even when the government allows lots of groups to submit designs (see Walker v. Sons of Confederate Veterans (2015)), the letter and number combinations on personalized plates are private speech. For a contrary view, see here.
Here is the appellate court's summary of the state's policy, which will now be evaluated by the lower court:
Justice Breyer's Establishment Clause Particularism
Justice Breyer saw church-state controversies as highly and inevitably fact-bound, solvable only through a judicial balancing exercise.
Thanks very much, again, to The Volokh Conspiracy for inviting me to blog about my recent paper on Justice Breyer's decisions and votes in Establishment Clause cases. In this post, I sketch a second distinguishing feature of his work, namely, the fact that he regularly rejected the argument that church-state cases could or should be resolved by applying a particular "test." Instead, his approach was consciously particularistic. He saw church-state controversies as highly and inevitably fact-bound, solvable only through a judicial balancing exercise akin to the proportionality review that is practiced in some other jurisdictions.
Justice Breyer was regularly described as "pragmatic." To be sure, this term means different things to different people. Still, it likely connotes some impatience with claims that judges can and should resolve well legal controversies via the consequence-indifferent invocation and application of a particular legal rule or test. A distinctive feature of Justice Breyer's approach to Establishment Clause controversies was his aversion to the constraints, and to what he regarded as the false promise of impersonality and regularity, of "tests."
Justice Breyer staked out his anti-test position most memorably in the Texas Ten Commandments case. He opened his controlling concurring opinion with Justice Arthur Goldberg's statement that there is "no simple and clear measure which by precise application can readily and invariably demark the permissible from the impermissible." "[N]o single mechanical formula," he insisted, "can accurately draw the constitutional line in every case" or "readily explain" the outcomes in a broad array of Establishment Clause decisions. He went on:
First-Grade Teacher's "Pursu[ing] Her Own Transgender Agenda Outside the Curriculum" May Violate Constitutional Parental Rights
Some excerpts from the long decision in Tatel v. Mt. Lebanon School Dist., decided yesterday by Judge Joy Flowers Conti (W.D. Pa.) (and see also the earlier decision in the case):
This case involves the extent of parents' constitutional rights when a public school permits a teacher to inculcate the teacher's beliefs about transgender topics in first-grade students over the objections of their parents. As noted in this court's October 27, 2022 opinion (the "first motion to dismiss opinion"), this case is not about treating all students with kindness, tolerance and respect.
Here, the parents allege that their children's first-grade teacher pursued her own transgender agenda outside the curriculum, which included: (1) instructing the children in her first-grade class that their parents might be wrong about their children's gender; (2) telling a student that the child could dress like a different gender and be like the teacher's transgender child (who was also in first grade in a different school); (3) telling a student that she, the teacher, would never lie (implying that the parents may lie about their child's gender identity); and (4) instructing students not to tell their parents about the transgender discussions. The teacher allegedly targeted the children's own gender identity and their parents' beliefs about the gender identity of their own children.
When the parents complained, the school district supported the teacher and allegedly adopted a policy (the "de facto policy") that the teacher's conduct could continue in the future without notice to the parents or the opportunity to opt their children out of that kind of agenda (despite providing broad parental notice and opt out rights for other topics). At this stage of the case, these averments must be accepted as true and construed in the light most favorable to Plaintiffs.
The defendants do not challenge the averments about the existence of the de facto policy. Instead, citing Parker v. Hurley (1st Cir. 2008), a decision from the First Circuit Court of Appeals, they argue that in a public school, parents have no constitutional right to notice or to opt their children out of any kind of instruction, regardless of the content of that instruction, the age of the children, or whether the instruction is part of the published school curriculum. See ECF No. 42 at 8 ("Parents have no constitutional right to exempt their children from classroom lessons, including those on transgender issues"). In other words, the defendants argue that parents simply have no constitutional right to notice or to object to any information a public school may present to their children.
District Court Judge Revives Kids Climate Case
Years after the Ninth Circuit ordered the case dismissed, it is brought back to life with a surprising trial court order.
This afternoon, Judge Aiken on the U.S. District Court for the District of Oregon revived Juliana v. United States, aka the "Kids Climate Case," by granting the plaintiffs' motion to amend their complaint, some two years after the motion was filed.
This is a remarkable order because the U.S. Court of Appeals for the Ninth Circuit previously ordered the case dismissed due to a lack of standing. The original Ninth Circuit panel ruling was in January 2020, and the court denied en banc rehearing in February 2021. The plaintiffs filed a motion to amend in March 2021, which was opposed by the Department of Justice on the grounds that "the mandate rule requires [the district] court to dismiss the case." Despite the DOJ's opposition, the district court further ordered a settlement conference, and whatever jurisdiction the district court may have retained over the case should have expired when the plaintiffs failed to petition for certiorari.
Judge Aiken clearly sees things differently. Her order begins:
In this civil rights action, plaintiffs—a group of young people between the ages of eight and nineteen when this lawsuit was filed and "future generations" through their guardian Dr. James Hansen—allege injury from the devastation of climate change and contend that the Constitution guarantees the right to a stable climate system capable of sustaining human life. Plaintiffs maintain that federal defendants have continued to permit, authorize, and subsidize fossil fuel extraction and consumption, despite knowledge that those actions cause catastrophic global warming. This case returns to this Court on remand from the Ninth Circuit Court of Appeals, where plaintiffs demonstrated their "injury in fact" was "fairly traceable" to federal defendants' actions—two of three requirements necessary to establish standing under Article III. However, the Ninth Circuit reversed with instructions to dismiss plaintiffs' case, holding that plaintiffs failed to demonstrate "redressability"—the third, final requirement to establish Article III standing. The Ninth Circuit determined that plaintiffs did not "surmount the remaining hurdle" to prove that the relief they seek is within the power of an Article III court to provide. Juliana v. United States, 947 F.3d 1159, 1171 (9th Cir. 2020). After that court's decision, plaintiffs moved to amend, notifying this Court of an intervening change in controlling law, Uzuegbunam v. Preczewski, ___U.S.___, 141 S. Ct. 792 (2021), asserting abrogation of the Ninth Circuit's ruling on redressability. Now, plaintiffs contend that permitting amendment will allow plaintiffs to clear the hurdle the Ninth Circuit identified, so that the case may proceed to a decision on the merits. For the reasons explained, this Court grants plaintiffs' motion for leave to file a second amended complaint. (Doc. 462).
As for how the proposed amendments address the standing problems identified by the Ninth Circuit, Judge Aiken wrote:
Plaintiffs assert that their proposed amendments cure the defects the Ninth Circuit identified and that they should be given opportunity to amend. Plaintiffs explain that the amended allegations demonstrate that relief under the Declaratory Judgment Act alone would be substantially likely to provide partial redress of asserted and ongoing concrete injuries, and that partial redress is sufficient, even if further relief is later found unavailable. . . .
Plaintiffs' Second Amended Complaint thus requests this Court to: (1) declare that the United States' national energy system violates and continues to violate the Fifth Amendment of the U.S. Constitution and Plaintiffs' constitutional rights to substantive due process and equal protection of the law; (2) enter a judgment declaring the United States' national energy system has violated and continues to violate the public trust doctrine; and (3) enter a judgment declaring that § 201 of the Energy Policy Act has violated and continues to violate the Fifth Amendment of the U.S. Constitution and plaintiffs' constitutional rights to substantive due process and equal protection of the law. . . .
Here, plaintiffs seek declaratory relief that "the United States' national energy system that creates the harmful conditions described herein has violated and continues to violate the Fifth Amendment of the U.S. Constitution and Plaintiffs' constitutional rights to substantive due process and equal protection of the law." (Doc. 514-1 ¶ 1). This relief is squarely within the constitutional and statutory power of Article III courts to grant. Such relief would at least partially, and perhaps wholly, redress plaintiffs' ongoing injuries caused by federal defendants' ongoing policies and practices. Last, but not least, the declaration that plaintiffs seek would by itself guide the independent actions of the other branches of our government and cures the standing deficiencies identified by the Ninth Circuit. This Court finds that the complaint can be saved by amendment. See Corinthian Colleges, 655 F.3d at 995.
The Ninth Circuit's initial decision dismissing the Juliana case was likely the best outcome the plaintiffs could have hoped for, as it avoided substantive Supreme Court intervention (after the justices had indicated their concern about the case). By reviving the case, Judge Aiken is tempting fate -- and risking a broader legal judgment that could preclude a broader array of climate-related suits.
Roy Moore Is (Still) Constitutionally Illiterate
A lesson in how to ensure you lose a case in court.
Readers may remember failed Republican Senate candidate Roy Moore, the former Chief Justice of the Alabama Supreme Court who was twice removed from the bench for failing to comply with federal court orders. When Moore ran for Senate, I wrote a piece for The Weekly Standard (now available on the Washington Examiner website) detailing Moore's failure to understand much about our constitutional system. In the years that have passed, it is not clear his understanding has improved.
Moore may no longer be a justice, but he continues to file cases and represent clients. He recently represented the First Apostolic Church of East Baton Rouge Parish in the U.S. Court of Appeals for the Fifth Circuit and it did not go well.
The church and its pastor, Mark Anthony Spell, objected to COVID-19 orders that prevented churches and other places of worship from holding in-person services during the early stages of the pandemic. They filed suit, but rather than argue that the state's stay-at-home orders were unconstitutonal insofar as they barred church services while allowing other businesses or institutions to remain open, Moore insisted on arguing that the Constitution bars any governmental order respecting a church's operation. According to Moore, church assembly is categorically "beyond the jurisdiction of the government."
Moore stuck to this position even when pressed at oral argument (as noted by Raffi Melkonian). The judges on the panel tried to suggest that the church should press other arguments, such as that it is unconstitutional to treat church assembly less favorably than other forms of assembly or to otherwise impose special burdens on religious exercise, but Moore would not relent. According to Moore, the only argument upon which they could prevail was that "separation of church and state means there's no jurisdictional position that the state can take where they can restrict church assembly."
As you might expect, this did not go well, and the Fifth Circuit panel (consisting of Judges Richman, Elrod and Oldham) ruled unanimously against the church in an unpublished per curiam opinion. Citing extensively from the oral argument transcript, the court explained that the church and its pastor, as represented by Moore, insisted on pressing a fruitless argument. Wrote the court:
Pastor Spell is the master of his case, and he cannot prevail on the theory he advances. Controlling precedent directly contradicts Pastor Spell's jurisdictional theory of the Religion Clauses.
Moore may have once been a state court justice, but it's clear he still has much to learn about the law.
(Hat tip: Advisory Opinions)
