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Busy Time of Year for the U.S. Supreme Court

Chad West Aug. 11, 2015

Every summer, the nine justices of the United States Supreme Court are busy announcing orders and opinions. June is always a busy month for the Court, with a flurry of opinions being issued before the Court recesses at the end of the month. The Court has recently announced decisions in several interesting cases, and there are more to come in the next few weeks.

In E.E.O.C. v. Abercrombie & Fitch Stores, the Court recently announced a decision in favor of a young woman who was refused a job at an Abercrombie & Fitch in Tulsa, Oklahoma because she wore a head scarf. The company said the head scarf, which is also called a hijab and is most often worn for religious reasons, violated its “look policy.” The Equal Employment Opportunity Commission sued Abercrombie on the woman’s behalf, alleging that Abercrombie had violated Title VII of the Civil Rights Act. Title VII prohibits employers from making a person’s religious practices a factor in employment decisions. Abercrombie argued that it did not know that the woman wore the head scarf for religious reasons and therefore it could not be sued under Title VII.

Justice Scalia, writing for the majority, said that Abercrombie at least suspected that the woman wore the scarf for religious reasons, even if she never told them as much. Because Title VII requires companies to make special accommodations for religious practices, Abercrombie was not permitted to make the head scarf a factor in the employment decision. All of this, Justice Scalia wrote, was enough to raise a claim under Title VII.

Abercrombie has since changed its dress code, granting accommodations to workers who wear religious attire, including hijabs.

The Court also decided an issue that involved the First Amendment and Facebook: in a criminal case, what must the prosecution prove in order to establish that someone has made a “true threat” on social media? In Elonis v. United States, a man was arrested after posting long, graphic rants on Facebook that contained violent language and imagery directed at his ex-wife. These posts also had disclaimers, however, stating that they were merely “fictitious” exercises of his First Amendment rights.

A jury convicted Elonis after finding that a reasonable person would have foreseen that such statements would be interpreted as true threats. The jury had heard testimony from Elonis’s ex-wife, who said that she was extremely frightened for herself and for her family after hearing about the posts. Elonis appealed the conviction, arguing that it did not matter what a “reasonable person” would have thought; what mattered was what Elonis himself thought as he posted on Facebook.

The Court agreed with Elonis, holding that the prosecution had to prove that Elonis had some type of “criminal intent” when he made the Facebook posts. Although it characterized Elonis’s Facebook rants as “crude, degrading, and violent,” the Court wrote that in order to support a criminal conviction the prosecution must prove that Elonis was “aware of [his] wrongdoing” to some degree. It was not enough to prove what a hypothetical “reasonable person” would have thought.

These cases were important affirmations of our country’s commitment to both religious freedom and freedom of speech. Those liberties are enshrined in the First Amendment for a reason, and it is the Court’s job to make sure that they aren’t diminished in any way.

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