Arguments in Masterpiece Cakeshop v Colorado Civil Rights Commission Oral arguments were recently held before the supreme court in Masterpiece Cakeshop v Colorado Civil Rights Commission. The discussion was almost exclusively about the 1st amendment's free speech provision and what kinds of business products/services convey a message and therefore should constitute protected speech. The same was true in their petition for certiorari, the replies, and the few amicus briefs I read. My question is about a few other arguments I expected to hear. The first deals with the religious free exercise clause of the 1st amendment: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof It was agreed upon by both sides that the baker refused to bake the cake in question on religious grounds. Is there precedent to suggest that a free exercise claim would not have prevailed? The second argument I expected has to do with the 13th amendment of the United States constitution: Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction. It seems to me that the baker could have argued that being forced to provide a service that he did not want to provide constitutes involuntary servitude. I am aware that this amendment was introduced to end slavery, but I don't believe this changes what those words mean, does it? Is there precedent that suggests that this interpretation is rejected by the courts or that such an argument would not have been successful? The closest case I could find that might address this is Butler v. Perry, but this case doesn't seem to say anything about one citizen working for another, it was about citizens working for the government.
The religious freedom argument has no legs following Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990). Although a State would be "prohibiting the free exercise [of religion]" in violation of the Clause if it sought to ban the performance of (or abstention from) physical acts solely because of their religious motivation, the Clause does not relieve an individual of the obligation to comply with a law that incidentally forbids (or requires) the performance of an act that his religious belief requires (or forbids) if the law is not specifically directed to religious practice and is otherwise constitutional as applied to those who engage in the specified act for nonreligious reasons. With respect to the "involuntary servitude", this was dealt with in Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241 (1964). The engagement of Federal power relied on the interstate commerce clause but the current case, as a state law matter, does not need to do this. Basically, by voluntarily providing the goods/service to the public, they agree that they will provide it in accordance with the law governing that kind of commerce. They are free to not provide it to anyone but if they choose to supply it they must supply it to everyone (subject ti normal rules of commerce like the customer actually paying etc.).
Speech of foreign nationals is not treated the same as that of citizens. In the case Buckley v. Valeo, 424 U.S. 1, the Supreme Court rules on the constitutionality of various statutory limits on campaign spending. Some parts of the law were upheld, others were overturned in 1st Amendment grounds. They upheld limits on contributions to candidates and volunteers' incidental expenses, and overturned limits on expenditures. In the decision, the court observed that [n]either the right to associate nor the right to participate in political activities is absolute and "governmental 'action which may have the effect of curtailing the freedom to associate is subject to the closest scrutiny'" The court stated that Even a 'significant interference with protected rights of political association' may be sustained if the State demonstrates a sufficiently important interest and employs means closely drawn to avoid unnecessary abridgment of associational freedoms. This is reasonably-standard strict scrutiny boilerplate language: what it remind you is that no Constitutionally-protected right is absolute, and all rights are subject to limitation, when that right conflicts with a compelling government interest. In the case of the federal contribution laws, that interest is the prevention of corruption and the appearance of corruption spawned by the real or imagined coercive influence of large financial contributions on candidates' positions and on their actions if elected to office. The court then found that under the rigorous standard of review established by our prior decisions, the weighty interests served by restricting the size of financial contributions to political candidates are sufficient to justify the limited effect upon First Amendment freedoms caused by the $1,000 contribution ceiling. 52 USC 30121 imposes a prohibition which, if placed on US persons, would be held to violate the 1st Amendment. That law prohibits, among others, a contribution or donation of money or other thing of value, or to make an express or implied promise to make a contribution or donation, in connection with a Federal, State, or local election by "a foreign national", defined to not include lawful permanent residents but otherwise includes all foreign citizens and entities. The constitutionality of this law was challenged on First Amendment grounds but affirmed in Bluman v. Fed. Election Comm'n, 800 F. Supp. 2d 281 (written by Kavanaugh in his previous job), and upheld in a one-sentence affirmation by SCOTUS. So, 1st Amendment rights of foreign nationals are not protected to the same extent as those of US citizens. It should be noted that the court also (expressly) did not decide if Congress could also constitutionally ban contributions by LPRs, or could prohibit foreign nationals from engaging in other forms of speech (issue advocacy and speaking on issues of public policy) – that matter was left undecided.
There are no feasible legal actions that you can take. The implausible action is to sue the state on some constitutional grounds and have the order overturned in part. The order contains no appeals process, so you would have to attack the order itself. There are, here and there, lawsuits on Free Expression Clause grounds regarding the shuttering of churches, which stand the greatest chance of prevailing at the level of SCOTUS. Even if the court were to rule that under these circumstances the right to attend mass church meetings cannot be restricted, it is significantly less likely that application of the emergency powers acts to weddings would be found to violate a fundamental right.
In Egbert v. Boule, 596 U.S. ___ (2022), the Supreme Court held that &quot;there is no Bivens action for First Amendment retaliation.&quot; The Court was unanimous on this point. This means that right now, there is no way to sue for a damages remedy for First Amendment retaliation by federal officials. The majority said that &quot;Congress, not the courts, is better suited to authorize such a damages remedy.&quot;
Firstly, because there isn't an explicit Constitutional &quot;right to privacy&quot;, per se, and even if there was (and there are arguments that several constitutional provisions amount, in aggregate, to a right to privacy), that it wouldn't be absolute, in the same way that freedom of speech and of the press are not absolutes. Indeed, the closest thing to a right to privacy, the 4th Amendment, has explicit caveats: &quot;The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.&quot; (emphasis mine). Thus reasonable searches and seizures, especially those authorized by a warrant, are constitutional. Furthermore, even in light of a constitutional right of privacy derived from this statue, depending on how the &quot;search history&quot; is compiled, the 4th Amendment might not even apply, due to the Katz doctrine, also known as the &quot;open fields&quot; doctrine. Basically, the 4th amendment (as far as searches goes) does not apply to things that are publicly observable; while this would protect a literal &quot;search history&quot; compilation (baring a reasonable search), the searches themselves are public queries, broadcasted over the internet. Anyone watching could compile them into a &quot;search history&quot; themselves.
Leonard's law says that the school can restrict speech if it is against the religious tenets of the organization. Now I don't think school uniforms fall are part of the tenets of Catholicism, so why can private schools enforce dress codes? I see there's a misunderstanding of the Leonard's law. But I fault the California legislators (not you) for that confusion, since the statutory language is ambiguous and leads to the reasonable interpretation your inquiry reflects. The statute reads: (c) This section does not apply to a private postsecondary educational institution that is controlled by a religious organization, to the extent that the application of this section would not be consistent with the religious tenets of the organization. It is not that a religious school is allowed to restrict speech if it contravenes the tenets of that religion, but that the statute altogether is inapplicable to religious schools because it is considered an infringement of fundamental liberties to which religious institutions are entitled in the US. The [religious] school would prevail on the basis of the ecclesiastical abstention doctrine. See Dermody v. Presbyterian Church (U.S.A.), 530 S.W.3d 467, 474 (2017): The ecclesiastical-abstention doctrine prohibits courts from deciding cases "dependent on the question of doctrine, discipline, ecclesiastical law, rule, or custom, or church government[.]". (Please note that I strongly disagree with the application of that doctrine in the Dermody case and I consider it impermissibly outdated for the controversy litigated therein, but that is a separate issue). A religious school could convincingly argue that the judicial review of its uniforms policy infringes matters of ecclesiastical discipline/rule/custom, aspects which ultimately "involve an internal church dispute over religious authority or dogma" Roman Cath. Archbishop of LA v. Super. Ct., 32 Cal.Rptr.3d 209, 220 (2005). Infringements of ecclesiastical abstention and akin doctrines would be outweighed only in "compelling" [cases] because "the duty to prosecute persons who commit serious crimes is part and parcel of the government's `paramount responsibility for the general safety and welfare of all its citizens'" Roman Cath. Archbishop of LA v. Super. Ct. at 225 (brackets added in this answer). A free speech controversy such as the school's uniform policy simply does not meet that threshold.
I haven't found a recent case like this where it constitutes evidence. Military members didn't have an express right to remain silent until somewhere in the 1950s, so one chances are there might be cases prior to that point. The present right is codified in 10 U.S.C. 831, which is Article 31 of the UCMJ. That said, there is certainly a well documented adverse inference effect. While jurors aren't supposed to take the silence into account (e.g. when a defendant elects not to testify or exercises a right against self-incrimination), it's a difficult thing to do, practically speaking.
The Establishment Clause of the First Amendment to the United States Constitution does not prohibit people with no affiliation with the government from trying to convert people to their religion in a way not endorsed by a government official or agency. It could be that there is some content neutral prohibition on strangers accosting young school children if that person is so persistent that it amounts to content neutral harassment, or that the person might actually be a sex offender prohibited from contacting children. But, the facts of the question don't seem to compel this conclusion. Even if it violates any law to do this, it is not a violation of the U.S. Constitution.