The Unacknowledged Clash Between the Supreme Court’s Interpretation of the Religion Clauses and the Free Speech Clause of the First Amendment

VIKRAM DAVID AMAR, ALAN E. BROWNSTEIN

Illinois law dean Vikram David Amar and UC Davis law professor emeritus Alan Brownstein comment on a largely unacknowledged clash between religious accommodations and exemptions on the one hand, and core free speech principles which the U.S. Supreme Court has repeatedly recognized, on the other. Amar and Brownstein describe this apparent conflict and suggest that the Court begin to resolve the conflict when it decides two cases later this term presenting the question of the scope of the “ministerial exception.”

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In re J.M.

Docket: H046917(Sixth Appellate District)

Opinion Date: January 24, 2020

Judge: Adrienne M. Grover

Areas of Law: Family Law, Juvenile Law

J.M., born in 2010, suffered an accident when he was 10 months old. Since the accident J.M. has resided at Children’s Hospital, suffering from anoxic brain injury, epilepsy, developmental delays, and bone disorders. He has gastrostomy and tracheal tubes and is nonverbal. In 2017, the Hospital declared him medically cleared for discharge, provided that two adults be trained as caregivers. J.M.’s father had never visited him; his mother’s visits were infrequent. The Santa Clara County Department of Family and Children’s Service filed a petition alleging that his parents were unwilling and/or unable to care for him and that they had a history of substance abuse. The Department recommended permanent legal guardianship by J.M.’s grandmother, who visited J.M. regularly and with whom J.M. had a positive emotional bond. J.M.’s siblings were also in her care. Grandmother completed some but not all of the training to care for J.M.; she had no plans to obtain accessible housing. Grandmother was not seeking placement of J.M. in her home. J.M. opposed the plan, arguing that the court lacked authority to appoint grandmother as legal guardian without him being in her physical custody and that the plan was not in his best interest because it would relieve the Department of any obligation to find a less restrictive placement. The court of appeal affirmed the adoption of the Department’s recommendation. Continued residence at the hospital may not be optimal, but grandmother is committed to J.M’s best interest and supports moving him to a suitable permanent care facility should that become available. The court asked the Department to continue to look for more permanent placement,

In re Q.R.

Docket: H043075A(Sixth Appellate District)

Opinion Date: January 24, 2020

Judge: Adrienne M. Grover

Areas of Law: Juvenile Law

Minor recorded photographs and videos on his cellular phone of consensual sexual activity between himself and Jane Doe, both under 18 years old. He later extorted money from Doe by threatening to disclose the recordings to other students at their high school. He was placed on juvenile probation after admitting to felony possession of child pornography (Pen. Code 311.11(a)) and extortion (Pen. Code 518, 520). Minor argued that a probation condition requiring him to submit all electronic devices under his control to warrantless searches by the probation department and to provide passwords necessary to access information on those devices was unconstitutionally overbroad. The California Supreme Court granted review and transferred the matter to the court of appeal for reconsideration in light of its 2019 decision, In re Ricardo P. The court of appeal again upheld the condition, noting the direct relationship between minor’s offenses and his use of an electronic device. The search condition was appropriately tailored.