A win for free speech in Idaho

The University of Idaho lost a major free speech and religious freedom case recently after a federal judge ruled in favor of the three Christian law school students at the center of the suit. Specifically, Judge David Nye, the U.S. District Judge for the District of Idaho, granted a preliminary injunction in favor of the students who were issued “no contact orders” by the university after they expressed basic religious views and defended the Christian organization of which they were a part. University of Idaho Professor Richard Seamon, who is the faculty adviser for the group called the Christian Legal Society, was also “made the subject of such an order,” according to attorney Jonathan Turley.

What’s genuinely remarkable, after you learn the details of the case, is just how clear-cut the situation is. This wasn’t a case in which both parties brought reasonable arguments before the court, each of which required careful weighing by the judge. It’s a black-and-white situation all the way down. The university was absolutely in the wrong, and the plaintiffs were absolutely in the right.

For an explanation of what happened, and the thinking behind the judge’s ruling, it’s best we turn to the text of the opinion itself. You’d be hard-pressed to find a more succinct yet thorough accounting:

“On April 1, 2022, the law school at the University of Idaho held a ‘moment of community’ in response to an anti-LGBTQ+ slur that had been left anonymously on a whiteboard in one of its classrooms in Boise, Idaho. Students, faculty, and staff from the law school gathered in front of the Moscow, Idaho, campus to express support for all students.

Plaintiffs were present at the event. Plaintiffs Perlot, Miller, and Alexander are law students and members of the University’s chapter of the Christian Legal Society (‘CLS’). Plaintiff Seamon is a professor at the law school and the CLS faculty advisor. At the event, Plaintiffs gathered in prayer—with members of their society and others—in a showing of support for the LGBTQ+ community. After the prayer concluded, Jane Doe approached the group and asked those present why the CLS constitution affirms that marriage is between one man and one woman. Plaintiff Miller explained that CLS adhered to the traditional biblical view of marriage and sexuality—including the concept that marriage is defined as being between one man and one woman. Jane Doe expressed her opinion that the Bible did not support such a conclusion. Miller explained further that the Bible defines marriage as between one man and one woman in several places and that it condemns homosexuality—along with all other sins. Plaintiff Seamon purportedly affirmed Miller’s explanation of CLS’s position on marriage.

According to both sides, the parties then parted ways without further comment. Shortly after the event, Plaintiff Perlot left a handwritten note on Jane Doe’s carrel. The note read—in its entirety: ‘I’m the president of CLS this semester. Feel free to come talk to me if you have anything you need to say or questions you want to ask. I’m usually in my carrel: 6-034. over by the windows. Peter [smiley face].’

A few days later, on April 4, 2022, Plaintiffs Perlot and Alexander attended an event with other students regarding the American Bar Association’s accreditation of the law school. According to Plaintiffs, Jane Doe and others raised concerns about CLS and its members—namely that they held religious beliefs that were bigoted and anti-LGBTQ+. Plaintiff Alexander then spoke up, defended CLS, and stated that the biggest instance of discrimination he had seen on campus was actually against CLS and the administration’s failure to timely recognize and register it as a group.

That same day, several students staged ‘walkouts’ for two of the courses taught by Plaintiff Seamon—seemingly in response to his participation at the event on April 1. Also on April 4, Defendant Lindsay Ewan—Deputy Director of OCRI—interviewed Miller about the events that took place during the law school’s community event on April 1. Three days later, on April 7, 2022, Plaintiffs Perlot, Miller, and Alexander received no-contact orders from OCRI. Apparently, Jane Doe reported to OCRI that Plaintiffs’ actions at the events described above left her feeling ‘targeted and unsafe.’ The no-contact orders prohibit Plaintiffs from having any contact with Jane Doe unless they receive advance permission from OCRI. The orders apply on and off campus, do not have termination dates, and state that ‘[a]ny action deemed to be in violation of this no contact order will be taken seriously and considered retaliation. Further action may be taken by this administration as a result, which could include suspension or expulsion.’

Plaintiffs apparently tried to resolve these issues with the University themselves and then with the aid of legal counsel, but to no avail. This lawsuit followed.”

Put more plainly, the university failed utterly to extend even basic protections and respect for the views held by the Christian law students and faculty member. The plaintiffs were railroaded by vindictive peers and discriminatory administrators even despite repeated efforts by the Christian students to maintain comity and facilitate open discussion. The plaintiffs even tried to avoid suing!

The judge continued, noting that, insofar as free speech is concerned, the plaintiffs merely exercised a protected right. Moreover:

“The disparity in Defendants’ approach is what bothers the Court most about this case and leans towards a finding that Defendants’ actions were designed to repress specific speech. Jane Doe approached CLS members at the community event on April 1. She asked them a question. And critically, her question was not ‘what do you believe on this topic,’ but ‘why do you believe the way you do on this topic?’ In other words, Jane Doe knew (at least to some degree) what members of CLS believed on the subject of marriage. That she did not agree with the answer Plaintiffs provided is, therefore, not surprising. What is surprising, however, is that Plaintiffs have suffered certain consequences for expressing their personal viewpoints at this event, while Jane Doe has not—even though she expressed opinions contrary to Plaintiffs’ sincerely held religious beliefs. Certainly, there is nothing in the record at this point to suggest that Plaintiffs went to the event to cause disruption or to target certain people.

[…]

Plaintiffs’ right to ‘free exercise’ includes not just the right to believe, but the right to exercise their faith. It encompasses the right to ‘profess whatever religious doctrine one desires,’ Emp. Div., Dep’t of Human Res. v. Smith, 494 U.S. 872, 877 (1990), and to ‘communicate’ those teachings to others, Hosanna-Tabor Evangelical Lutheran Church& Sch. v. EEOC, 565 U.S. 171, 199 (2012) (Alito, J., concurring). Under the Free Exercise Clause, a law or rule that is not neutral or generally applicable is subject to strict scrutiny.”

Nye, who was nominated to the federal judiciary first by President Barack Obama, had his nomination expire with the conclusion of the 114th Congress, and was then renominated by President Donald Trump and confirmed unanimously by the U.S. Senate, concluded his opinion with some sound advice and criticism for the University of Idaho.

“There is a sad irony in the fact that the restraint on Plaintiffs’ speech began at an event meant to reiterate acceptance and tolerance and to dissuade bullying and marginalization,” Nye said. “The Court shares law school Dean Johanna Kalb’s hope that, at a law school, ‘classrooms and hallways will be a place of robust discussion and debate’ and that ‘the foundation for all of these discussions [will be] mutual respect and grace.'” He added, “Some may disagree with Plaintiffs’ religious beliefs. Such is each person’s prerogative and right. But none should disagree that Plaintiffs have a right to express the irreligious beliefs without fear of retribution. The Constitution makes that clear.”

Hear, hear.

Good for the judge — but, really, it shouldn’t have come to this. Sadly, this is the world in which we live: one where elite institutions extend basic protections and respect in all directions except for the one where conservatives sit.

It’s good the judge ruled in the plaintiffs’ favor, but it’s shameful he had to weigh in at all.

Becket Adams is the program director of the National Journalism Center.