The Family Foundation focuses on lawmakers, but we also engage courts . . .

May/June 2020

We do “friend of the court” (amicus) briefs to protect Kentucky families. In some sense, as the Declaration of Independence foresaw, as long as we have life and First Amendment liberties, then every American can indeed choose the pursuit of happiness.

Over the past four years, The Family Foundation has filed a number of amicus (or “friend of the court”) briefs in court cases that touched on our strong interest of protecting the sanctity of life and the First Amendment rights of all Kentucky families. This is one way, in addition to working with state legislators and keeping Kentuckians informed on legislative issues, that The Family Foundation fulfills its mission to protect the family and the values that make families strong. Though The Family Foundation is a party in the 9-year court case that focuses on the expansion of gambling via slot-like horse racing machines, it more often engages critical court cases through amicus briefs, believing that policies should be made in the legislature by the peoples’ duly-elected senators and representatives; compliance to those policies should be judged by the court. Unfortunately, for decades judges have been asked by liberal individuals and groups to make policies from the bench. These cases are simply pushing back on those who would use the court to usurp the legislature.

June Medical Services v. Russo (2019)

Status of case: This case is currently pending at U.S. Supreme Court – Oral arguments were heard on March 4, 2020

The State of Louisiana passed a law intended to promote maternal health and its underlying interest in protecting unborn life. While the law prohibits abortion providers from conducting abortions without admitting privileges at a nearby hospital, it is no broader than necessary to protect the mother from complications requiring emergency attention.

In applying Casey v. Planned Parenthood to abortion cases, lower courts have adopted an essentially legislative role. The Family Foundation and other family policy councils urge the U.S. Supreme Court to establish an objective standard that ensures the rule of law is upheld, states have guidance, and public confidence in the courts is strengthened.

Under an objective standard similar to that used in First Amendment cases, Louisiana’s regulations of abortion clinics would be upheld as constitutional.

The U.S. Supreme Court heard oral arguments in the case on March 4, 2020 and a decision will likely be announced in June.

LFUCG Human Rights Commission v. Hands On Originals (2016)

Status of case: Kentucky Supreme Court ruled in favor of Hands On Originals on October 31, 2019

In 2012, Blaine Adamson, the owner of Hands On Originals, refused to print t-shirts promoting the 2012 Lexington Pride Festival and, in 2014, Lexington’s Human Rights Commission found him guilty of discrimination.

But the Circuit Court reversed, declaring that the Commission’s finding was “in violation of Constitutional and statutory provisions” and “without support of substantial evidence on the whole record.”

The Commission insisted on continuing to persecute Adamson, appealing to the Court of Appeals. The Family Foundation filed an amicus brief on February 5, 2016, urging the Court of Appeals to uphold the constitutional free speech and religious liberty rights of Adamson.

Two of the three judges on the Court of Appeals panel sided with Adamson and Hands On Originals, granting another victory.

But the Commission insisted on appealing to the Kentucky Supreme Court. The Kentucky Supreme Court finally brought the 7-year legal battle to an end on October 31, 2019, when it decided in favor of Hands On Originals because those that were going after them for seven years did not have standing under the law to sue.

NIFLA v. Becerra (2018)

Status of case: U.S. Supreme Court ruled in favor of NIFLA on June 26, 2018

In addition to Masterpiece Cakeshop (see above right), the U.S. Supreme Court had to hear a second 2018 case about a state government violating the First Amendment rights of its citizens.

California chose to compel pro-life crisis pregnancy centers to advertise the availability of free or low-cost abortions.

The belief that the unborn child is a separate human life, equal in value to any other living person, is the soul motivating the actions of pro-life pregnancy centers. But the State of California chose to directly interfere with their efforts by forcing them to advertise the availability of free or low-cost means of facilitating death.

The Family Foundation argued that there are few state actions more repugnant to the consciences of sincere, pro-life citizens than demanding they advertise the very death-causing procedure they work so mightily to oppose. Compelled speech is not the answer to cultural conflict.

The U.S. Supreme Court ruled in favor of the pro-life pregnancy centers and the First Amendment. In fact, a concurring opinion by four of the justices (a fifth presumably agrees, but could not sign on because he wrote the majority opinion) declared:

“But it is not forward thinking to force individuals to be an instrument for fostering public adherence to an ideological point of view they find unacceptable. It is forward thinking to begin by reading the First Amendment as ratified in 1791; to understand the history of authoritarian government as the Founders then knew it; to confirm that history since then shows how relentless authoritarian regimes are in their attempts to stifle free speech; and to carry those lessons onward as we seek to preserve and teach the necessity of freedom of speech for the generations to come. Governments must not be allowed to force persons to express a message contrary to their deepest convictions. Freedom of speech secures freedom of thought and belief. This law imperils those liberties.”

Masterpiece Cakeshop v. Colorado Civil Rights Commission (2017)

Status of case: U.S. Supreme Court ruled in favor of Masterpiece Cakeshop on June 4, 2018

Colorado used its “fairness” law to punish a baker for his refusal to create a wedding cake for a same-sex wedding. The U.S. Supreme Court reviewed the case.

The Family Foundation argued that if the state of Colorado prevails in this case, fundamental First Amendment rights have become fragile indeed. They survived world war and the pressure for national unification in the face of an existential threat; surely, they should survive the sexual revolution and the modern pressure for ideological uniformity.

The U.S. Supreme Court, on June 4, 2018, decided in favor of Masterpiece Cakeshop and made clear that the government cannot show hostility towards religion. While questions remained unanswered about bakers having to create a wedding cake, a strong message was sent that Colorado’s attacks on the religious faith of the baker were unacceptable.

Harris Funeral Homes v. EEOC (2019)

Status of case: This case is currently pending before the U.S. Supreme Court – Oral arguments heard on October 8, 2019

On October 8, the U.S. Supreme Court heard oral arguments in Harris Funeral Homes. The Court must decide whether a claim to be transgender makes an employer’s even-handed policies based on biological sex a form of sex discrimination and whether gender is a set of sexual stereotypes.

The Family Foundation’s brief argues that parents have a fundamental right to teach and bring up their children, a decision to redefine sex discrimination to include transgender status and gender undermines those fundamental rights. It will limit and unsettle parental rights in dangerous ways – parents’ interests in having single-sex facilities and programs at schools; medical care of their children; and parental involvement in other ways, including the right to custody and parental notification.

APF v. Becerra (2019)

Status of case: U.S. Supreme Court is currently deciding whether to hear the case.

In 2010, the California Attorney General’s Office began demanding that all charities fundraising in the state turn over a list of the names and addresses of their major donors. The Attorney General’s Office claimed they would be kept secret, but there have been repeated and widespread leaks.

The trial court ruled in favor of the nonprofit organizations, saying that disclosure of major donors and their addresses was a violation of their First Amendment rights.

However, the Ninth Circuit Court of Appeals ruled that the disclosure could be required.

The U.S. Supreme Court is currently considering whether to hear the case. In February, the Court requested that the U.S. Government submit its views on the matter.

The Family Foundation argues that nonprofits, their donors, and the community they serve benefit from donor anonymity. Requiring disclosure of major donors opens them up to harassment, public shaming, and threats. It therefore chills protected speech and association, results in lost revenue, and causes communities to suffer.

Chelsey Nelson Photography v. Louisville (2020)

Status of case: The case is currently in the U.S. District Court for the Western District of Kentucky, Louisville Division.

The Family Foundation, along with the Center for Religious Expression, filed an amicus brief in federal court to support a Louisville wedding photographer and blogger who is challenging the city’s sexual orientation and gender identity (SOGI) ordinance for forcing her to promote same-sex weddings and prohibiting her from publicly explaining her beliefs about celebrating marriage.

Chelsey Nelson is a young entrepreneur, photographer, and blogger who simply desires the freedom to continue telling stories that present marriage as something created by God, worthy of celebration and honor.

The government cannot compel the selecting and composing of written messages or images, that is a universally recognized doctrine. It is time for the courts to bring the City of Louisville into compliance with the U.S. Constitution and Kentucky law.

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