SCOWIS to Consider Scope of Ministerial Exception

Posted on Categories First Amendment, Religion & Law, Wisconsin Law & Legal System2 Comments on SCOWIS to Consider Scope of Ministerial Exception

Earlier this fall, the Wisconsin Supreme Court granted a petition for review in Coulee Catholic Schools v. Labor and Industry Review Commission. The decision below is here

The case involves the scope of the ministerial exception to age discrimination claims under the Wisconsin Fair Employment Act. The complainant, Wendy Ostlund, was a teacher in a Catholic grade school who had been laid off. While certain of her duties were explicitly religious, e.g., she taught religion, led the students in prayer, prepared them for liturgies, and sometimes incorporated religious themes into secular subjects, most of her day was not spend in expressly religious activities.

The Court of Appeals held that the application of the exception turned on whether Ms. Ostlund’s primary duties were minsterial, i.e., did they consist of “teaching, spreading the faith, church governance, supervision of a religious order, or supervision or participation in religious ritual and worship . . . .” The exception applies only when a position is “quintessentially religious,” because it is such a position that presents the prospect of making an “inroad on religious liberty” that is “too substantial to be permissible.”

Continue reading “SCOWIS to Consider Scope of Ministerial Exception”

“When You Go To Tearing the Lights Off My Jesus … You Just Don’t Do That”

Posted on Categories First Amendment, Religion & Law3 Comments on “When You Go To Tearing the Lights Off My Jesus … You Just Don’t Do That”

So says Daniel Long of Muncie, Indiana, who put a statue of Jesus outside the patio door to his apartment. Mr. Long placed a spot on the statue that casts His shadow on the apartment building, which apparently overlooks a polling place.

The manager of the complex asked him to remove the statue and, when Long refused, tried to remove it himself, causing a near altercation and the observation that titles this post.

What I find interesting is the manager’s claim that he is required to remove the statue because of the Fair Housing Act, which prohibits any “notice, statement or advertisement that indicates a preference, limitation or discrimination based on religion” in the sale or rental of housing.

That argument seems to be a non-starter.

Continue reading ““When You Go To Tearing the Lights Off My Jesus … You Just Don’t Do That””

Update on Prior Restraint

Posted on Categories First Amendment, Political Processes & Rhetoric, Wisconsin Law & Legal SystemLeave a comment» on Update on Prior Restraint

The Court of Appeals has stayed the TRO, saying “we are aware of no caselaw which permits prior restraint of speech before an adjudication on the merits of the defamatory nature of the statement at issue.” It will, however, permit Radcliffe’s lawyers to submit a brief. I don’t think that’ll change anything.

Update: Having read the entire transcript of yesterday’s hearing, it appears that the court based its order on defamation, not because of constitutional concerns over 12.05 (he declined to entertain them), but because he thought that 12.05 did not provide for a civil action.

Prior Restraint in Black River Falls

Posted on Categories First Amendment, Political Processes & Rhetoric, Wisconsin Law & Legal SystemLeave a comment» on Prior Restraint in Black River Falls

This is astonishing.

On Friday, in Jackson County, a circuit court judge named Thomas Lister issued an ex parte temporary restraining order against an ad run by a group called the Coalition For America’s Families. The court found that the plaintiff, Radcliffe For Assembly, had demonstrated a reasonable likelihood of success on its claim that the ad violated Wis. Stat. § 12.05 in that it “may knowingly make or publish, or cause to be made or published, a false representation pertaining to a candidate or referendum which is intended or tends to affect voting at an election. ”

The ad apparently stated that Mark Radcliffe, a Democratic candidate for the 92nd Assembly District, supports a health care plan that would double Wisconsin’s taxes, impose 15 billion dollars in new taxes, and represent a $ 510/month increase in taxes for every Wisconsin worker. (While news reports have said that the ad also claimed that the plan would provide benefits to out-of-state residents and illegal aliens, neither the complaint nor the restraining order mention any such statements.)

The order is extraordinary for a number of reasons. Continue reading “Prior Restraint in Black River Falls”

Panel Discussion on the Fairness Doctrine, But Will It Matter?

Posted on Categories First Amendment, Speakers at Marquette1 Comment on Panel Discussion on the Fairness Doctrine, But Will It Matter?

I had the pleasure of moderating a panel discussion on the potential for and desireability of a return of the Fairness Doctrine sponsored by the Marquette University Law School student chapter of the Federalist Society. The panelists were Chicago radio talk show host Guy Benson and local talk show host Charlie Sykes in “opposition” and Marquette Communications Professor Eric Ugland and local talker Joel McNally, who were in “favor” or, at least, not resolutely opposed.

The Fairness Doctrine was a set of FCC policies that required broadcast stations to address matters of public interest (an aspect that was not enforced) and that required some measure of even-handedness in addressing such issues. Those of us who are a little older will recall news broadcasts in which, usually at the tail end, someone was presented to give “equal time” in opposition to an earlier editorial view expressed by the station. This was, as middle-aged fans of Saturday Night Live will recall, the premise for Gilda Radner’s hard-of-hearing Emily Latilla, who was brought on to offer “responsible opposing view points.” (“What’s all this fuss I hear about an eagle rights amendment?”)

The Supreme Court upheld the doctrine over a constitutional challenge in the late ’60s, but it was abandoned during the latter years of the Reagan administration. Continue reading “Panel Discussion on the Fairness Doctrine, But Will It Matter?”

Doing Doors in Kewaskum

Posted on Categories Eastern District of Wisconsin, First AmendmentLeave a comment» on Doing Doors in Kewaskum

Last Tuesday, a consent judgment was entered in the Eastern District of Wisconsin resolving a free speech claim brought by a self-described “traveling evangelist.” The plaintiff Michael Foht was told by the Kewaskum Police that he could distribute religious literature only to people who said that they wanted it. This meant that he could not leave literature at private residences (he must first knock on the door and ask permission) or leaflet automobiles.

This instruction was based on an extraordinarily broad village ordinance which prohibited the distribution of “any printed matter on literature on public or private property” or the placement of such literature on motor vehicles. The ordinance had an exception for the distribution of literature to persons “willing to accept” it.

Foht apparently attempted to clarify the matter with the village attorney, who failed to return his calls. That turned out to be expensive.

Foht filed suit and the village, finally obtaining the proper legal advice, repealed the ordinance. The consent decree declares that the ordinance was facially unconstitutional and should not have been applied to Foht and awards him $11,000 in attorneys fees and costs.

The result is unexceptional, but the fact of the case may be instructive. What the law requires and whether it is complied with are two different matters. I doubt that this type of ordinance was only to be found in Kewaskum, Wisconsin.