“And God created man to his own image: to the image of God he created him: male and female he created them.” (Genesis 1:27)
This clear statement of fact is fast becoming one of the most controversial scripture passages.
Since January 2018, Professor Nicholas Merriweather has been living within that controversy. On March 26, 2021, he received a victory, courtesy of the Sixth Circuit Court of Appeals. The court’s opinion is not a final victory; they send the case back to a lower court for re-trial. However, the decision is so solidly in the professor’s favor that it will be difficult to rule against him.
Indeed, the Sixth Circuit Court’s opinion is almost a “how-to book” about defeating transgender tyranny.
A Brief Overview
The case involves Nicholas Merriweather, who has taught philosophy at Shawnee State University in Ohio for over twenty-five years. His style is to use “Socratic Dialogue,” which helps the students refine their positions through argumentation. To ensure proper respect, he refers to students by honorific and last name (Mr. Smith, Miss Jones, etc.) and insists that students do the same.
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In January 2018, a male student insisted upon a female pronoun. Prof. Merriweather told the student that his religious values precluded his doing so because it would bear witness to an untruth. The student, Mr. Bruening (referred to as “Doe” in the court’s opinion), complained to the university’s administration.
The university officially reprimanded Professor Merriweather and threatened “further corrective action.” Furthermore, “The officials justified the university’s refusal to accommodate Meriwether’s religious beliefs by equating his views to those of a hypothetical racist or sexist.”
In turn, the Professor lodged a civil complaint in U.S. District Court and lost. He appealed to the Sixth Circuit Court of Appeals. That court’s opinion contains valuable advice for those who find themselves defending traditional morality against state bureaucrats. Hopefully, the legal reasoning and vocabulary extensively quoted below will assist others in similar situations.
First Amendment Freedom of Speech
The first issue that the court dealt with was freedom of speech.
“The First Amendment protects ‘the right to speak freely and the right to refrain from speaking at all.’ Thus, the government ‘may not compel affirmance of a belief with which the speaker disagrees.’ When the government tries to do so anyway, it violates this ‘cardinal constitutional command.’”
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Under normal circumstances, government employees have few free speech rights connected to their duties, but the courts have long acknowledged that college professors are not typical government employees. “Those decisions have ‘[G]iven the important purpose of public education and the expansive freedoms of speech and thought associated with the university environment, universities occupy a special niche in our constitutional tradition.’”
“As a result, our court has rejected as ‘totally unpersuasive’ the argument that teachers have no First Amendment rights when teaching, or that the government can censor teacher speech without restriction…. Simply put, professors at public universities retain First Amendment protections at least when engaged in core academic functions, such as teaching and scholarship.”
The judges concluded the section on free speech with a compelling argument. “If professors lacked free-speech protections when teaching, a university would wield alarming power to compel ideological conformity. A university president could require a pacifist to declare that war is just, a civil rights icon to condemn the Freedom Riders, a believer to deny the existence of God, or a Soviet émigré to address his students as ‘comrades.’ That cannot be. ‘If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe’ such orthodoxy.”
Preferred Pronouns
Shawnee State contended that the professor must use Mr. Bruening’s “preferred pronouns” as a matter of classroom management. Such issues can be legitimate. Teachers must manage the classroom so that the students learn. In the absence of good management, the administration must take action.
However, the court said that pronouns are not such an issue. “[T]itles and pronouns carry a message. The university recognizes that and wants its professors to use pronouns to communicate a message: People can have a gender identity inconsistent with their sex at birth. But Meriwether does not agree with that message, and he does not want to communicate it to his students. That’s not a matter of classroom management; that’s a matter of academic speech.”
“When speech relates ‘to any matter of political, social, or other concern to the community,’ it addresses a matter of public concern…. Meriwether did just that in refusing to use gender-identity-based pronouns. And the ‘point of his speech’ (or his refusal to speak in a particular manner) was to convey a message.
“In short, the use of gender-specific titles and pronouns has produced a passionate political and social debate. All this points to one conclusion: Pronouns can and do convey a powerful message implicating a sensitive topic of public concern.”
Therefore, the court asserts that those pronouns facilitate a legitimate method to discuss topics that were in line with a philosophy class’s content. As if to reiterate its conclusion, the court added, “[T]here is no suggestion that Meriwether’s speech inhibited his duties in the classroom, hampered the operation of the school, or denied Doe [Mr. Bruening] any educational benefits.”
Discrimination by Sex?
The university’s last argument was that not treating Mr. Bruening as a woman violated Title IX of the Higher Education Act, passed in 1972. Title IX prohibits a school from discriminating in any program or activity based on sex. The purpose of the act was clear. Congress told schools that they must treat women in the same way that they treated men.
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Congress did not intend to “protect” men pretending to be women.
Professor Merriweather did not discriminate against Mr. Bruening. “[T]here is no indication at this stage of the litigation that Meriwether’s speech inhibited Doe’s education or ability to succeed in the classroom…. Thus, Shawnee State’s purported interest in complying with Title IX is not implicated by Meriwether’s decision to refer to Doe [Bruening] by name rather than Doe’s preferred pronouns.”
Free Exercise
Then, the court took up the professor’s contention that the university had denied him the “free exercise” of his religious beliefs. The First Amendment to the Constitution states, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” (Emphasis added.)
The university denied Professor Merriweather free exercise rights because they took exception to his views but allowed others to express contrary opinions on the same subject. That meant that the rule as applied was neither “neutral,” nor was it “generally applicable,” both of which are necessary when limiting free exercise rights.
Complicating the issue was the “religious hostility” of the university officials. “Meriwether ‘was entitled to a neutral decisionmaker who would give full and fair consideration to his religious objection as he sought to assert it in all of the circumstances in which this case was presented, considered, and decided.’ And that, he at least plausibly did not receive.”
The primary administrators involved were Department Chairman Jennifer Pauley and Provost Jeffrey Bauer.
“Start with … Jennifer Pauley. Meriwether came to her to discuss his religious concerns about the new policy. Pauley might have responded with tolerance, or at least neutral objectivity. She did not. Instead, she remarked that religion ‘oppresses students’ and said that even its ‘presence’ at universities is ‘counterproductive.’ Christians in particular, she said, were ‘primarily motivated out of fear.’ In her view, ‘Christian doctrines . . . should not be taught.’ And for good measure, she added that Christian professors ‘should be banned’ from teaching courses on Christianity—knowing that Meriwether had done so for decades.”
After being disciplined, Prof. Merriweather tried to appeal the decision by going to Provost Bauer. Another professor accompanied the professor as representative of the union to which both professors belonged.
“[Provost Bauer] repeatedly interrupted the union representative and made clear that he would not discuss the ‘academic freedom and religious discrimination aspects’ of the case. The union representative tried to explain Meriwether’s religious beliefs and the teachings of his church. But Provost Bauer responded with open laughter. And after the laughter, Bauer became ‘so uncooperative’ that the union representative ‘was not able to present the grievance’ at all. Bauer’s alleged actions and words demonstrated anything but the ‘neutral and respectful consideration’ that the Constitution demands.”
“In sum, Meriwether has plausibly alleged that religious hostility infected the university’s interpretation and application of its gender-identity policy…. [W]e simply hold that Meriwether has plausibly alleged a free-exercise claim based on religious hostility.”
Future Options
This is not the end of the case. The university may wish to pursue a second trial before the original court. However, that original must now consider the Circuit Court’s opinion. The clear reasoning of the Circuit Court is a breath of fresh air in a culture polluted with transgender tyranny and woke ideology.
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