Bench Memos

Important Sixth Circuit Ruling on Freedom of Religious Speech and Free Exercise

The Sixth Circuit, in an outstanding opinion by Judge Jeffrey Sutton, ruled today (in Ward v. Polite) that a district court wrongly granted summary judgment in favor of university defendants on the claim by a student, Julea Ward, that she had been expelled from a graduate-level counseling degree program because of the university’s hostility towards her speech and faith.

Ward’s Christian religious beliefs prevented her from counseling clients in a manner that would affirm same-sex or extramarital relationships. When the university asked Ward, as part of a student practicum, to counsel a gay client, she asked either that the client be referred to another student or that she be permitted to begin counseling and to make a referral if the counseling session turned to same-sex relationship issues. The university’s ultimate response was to expel Ward from the graduate program.

Applying the usual standard for summary judgment, the Sixth Circuit ruled that Ward’s claims that her First Amendment speech and religious rights had been violated should have been permitted to go to the jury for decision. As the opinion carefully explains, there was plenty of evidence that would have enabled a jury to find that the university’s claimed reasons for expelling Ward were pretextual.

I’d like to especially highlight the Sixth Circuit’s reasoning on Ward’s Free Exercise claim, as it bears on (and supports) my post explaining that Washington state regulations that require objecting pharmacists to dispense the drug Plan B violate their Free Exercise rights. As the Sixth Circuit explains, a law is not neutral and generally applicable for purposes of Employment Division v. Smith—and is instead subject to strict scrutiny—if it “permit[s] secular exemptions but not religious ones” and is not applied “in an even-handed, much less a faith-neutral, manner.” In Ward’s case, “The multiple types of referrals tolerated by the counseling profession severely undermine the university’s interest in expelling Ward for the referral she requested.”  

As is characteristic of Judge Sutton’s work, his opinion is eminently readable and provides a clear and comprehensive account of the relevant law. (It also appears to be the first published federal appellate opinion ever to mention the platypus.) Disclosure: I’ve known Judge Sutton from our clerking together two decades ago; Judge Sutton was a law clerk for retired Justice Powell and doubled as an extra clerk in the Scalia chambers.

Congratulations to the Alliance Defense Fund, which represented Ward, and to all the supporting amici.


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