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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Bigger v. Facebook, Inc.

Docket: 19-1944

Opinion Date: January 24, 2020

Judge: KANNE

Areas of Law: Arbitration & Mediation, Class Action, Labor & Employment Law

Facebook employee Bigger sued Facebook alleging violations of the Fair Labor Standards Act (FLSA), 29 U.S.C. 201, overtime-pay requirements, on behalf of herself and all similarly situated employees. The district court authorized notice of the action to be sent to the entire group of employees. Facebook argued the authorization was improper because many of the proposed recipients had entered arbitration agreements precluding them from joining the action. The Seventh Circuit remanded, stating that, in authorizing notice, the court must avoid even the appearance of endorsing the action’s merits. A court may not authorize notice to individuals whom the court has been shown entered mutual arbitration agreements waiving their right to join the action and must give the defendant an opportunity to make that showing. When a defendant opposing the issuance of notice alleges that proposed recipients entered such arbitration agreements, the court must determine whether a plaintiff contests the defendant’s assertions about the existence of valid arbitration agreements. If no plaintiff contests those assertions, then the court may not authorize notice to the employees whom the defendant alleges entered valid arbitration agreements. If a plaintiff contests the defendant’s assertions, then— before authorizing notice to the alleged “arbitration employees”—the court must permit the parties to submit additional evidence on the agreements’ existence and validity.

Abellan v. Lavelo Property Management, LLC

Docket: 18-3695

Opinion Date: January 24, 2020

Judge: HAMILTON

Areas of Law: Business Law, Contracts, Real Estate & Property Law

A New York owner of a fast-food property in Illinois, which was rented by an Arizona tenant, sold the property to buyers in California (Abellan). The tenant declared bankruptcy and never paid rent to its new landlord. Abellan sued. A jury found the purchase agreement rescindable for mutual mistake and the sellers liable for fraud and breach of contract and awarded damages of more than $2 million. The Seventh Circuit affirmed. The sellers warranted to Abellan that there was “no default by Seller, or to Seller’s knowledge ... under the Lease.” A critical provision of the lease required the tenant to operate its restaurant business continuously. the jury had sufficient evidence to find a breach of the no-default warranty “to Seller’s knowledge” and Abellan reasonably relied on the no-default warranty. The court rejected claims of waiver and that the jury’s findings on damages and reliance were contrary to the weight of the evidence.

Labrec v. Walker

Docket: 18-1682

Opinion Date: January 24, 2020

Judge: ROVNER

Areas of Law: Civil Rights, Constitutional Law, Criminal Law

LaBrec, an inmate at a maximum-security institution, with a history that included prior assaults on inmates and staff, was transferred to the Restricted Housing Unit and was placed in a cell with McNeely, who was in the Unit following an assault on his prior cellmate. LaBrec was designated a “pair with care” inmate; Psychological Services were supposed to be consulted prior to assigning a cellmate. LaBrec informed the staff repeatedly of that status and was allowed to see Dr. Persike in Psychological Services. LaBrec informed Persike that McNeely was talking about beating up his last cellmate and that LaBrec did not feel safe with McNeely. LaBrec continued to ask to be moved, complaining did not feel safe. At one point he had an anxiety attack and began crying and asking for help. LaBrec was not reassigned. Three days after the cell assignment, McNeely stabbed LaBrec with a pen behind his ear, in the back, and in his shoulder. The district court rejected LaBrec’s suit under 42 U.S.C. 1983 on summary judgment. The Seventh Circuit affirmed with respect to some defendants who were unaware of surrounding circumstances that could render plausible LaBrec’s claim of a threat to his safety. The court reversed with respect to others; a jury could reasonably infer that those defendants possessed a subjective awareness of a serious risk to LaBrec and failed to take the minimal, reasonable action of inquiring further and investigating the situation.

United States v. Melvin

Docket: 19-1409

Opinion Date: January 24, 2020

Judge: KANNE

Areas of Law: Criminal Law

Melvin pled guilty to possessing with intent to distribute more than 50 grams of methamphetamine. The probation office prepared a presentence investigation report (PSR) and filed it with the court electronically. Melvin’s crime carried a mandatory minimum sentence of 15 years in prison followed by 10 years of supervised release. The probation office mailed Melvin’s attorney a letter, stating that the PSR had been electronically filed and that, “Pursuant to Judge Myerscough’s directive, a copy of the report has not been provided to the defendant and you should not provide a copy to them. You are responsible for reviewing the report with Mr. Melvin.” Melvin’s attorney reviewed the PSR with Melvin without giving the PSR to Melvin. Melvin’s attorney's objections to the PSR were resolved. At his sentencing hearing, Melvin asked if he could get a copy of the PSR. Judge Myerscough denied Melvin’s request, explaining that “[t]here is confidential information ... that would be harmful” to Melvin and his family. The district court sentenced Melvin to 15 years in prison and 10 years of supervised release. The Seventh Circuit affirmed. The district court did not violate 18 U.S.C. 3552(d), which only requires “disclosure,” but did violate Federal Rule of Criminal Procedure 32(e)(2) by denying Melvin a copy of his PSR but the error was harmless. Melvin’s sentence could not be lower if he were resentenced.

Youngman v. Peoria County

Docket: 18-2544

Opinion Date: January 24, 2020

Judge: ROVNER

Areas of Law: Labor & Employment Law

Youngman, a Peoria County Juvenile Center counselor, was diagnosed with a pituitary tumor and acromegaly in 1993 and had surgery to remove the tumor and part of his pituitary gland. He had a thyroidectomy in 2011, resulting in hypothyroidism and hypocalcemia. The Center’s superintendent reviewed the rotation of assignments and decided that every counselor needed to be trained in and rotated through all assignments, including the control room. Youngman had only worked in the control room on 10-14 occasions during his 13 years at the Center. Youngman was assigned to work in the control room for a week in 2012 but was not told that this was for training purposes and would only be temporary. Youngman informed his supervisor that he could no longer work in the control room because he experienced headaches, nausea, and dizziness. He was placed on medical leave and instructed that he could return to work when his condition improved. After Youngman’s leave time expired, his position was filled; he found employment elsewhere. He filed suit under the Americans with Disabilities Act, alleging that his employer had refused to accommodate his disability. The district court granted the defendants summary judgment. The Seventh Circuit affirmed, citing the lack of proof of a causal nexus between Youngman’s hypothyroidism and the limitation for which he sought an accommodation.