Those who distrust the federal judiciary should have more faith, in both senses of the word.
Faith-related First Amendment rights have been on a multiyear winning streak in courts across the land, and the first major appeals court decision of 2025 has kept that streak alive. When even three judges first appointed by Democratic presidents pay heed to such rights, the First Amendment is on solid ground.
On Jan. 2, the U.S. Court of Appeals for the 2nd Circuit partially overturned a district court’s denial of faith-based “expressive association” rights. In other words, it reinstated a lawsuit aiming to protect those rights.
The case of CompassCare v. Hochul involves a challenge filed by two pregnancy-care organizations and a Baptist church against a 2019 change to New York labor laws aimed at prohibiting “discrimination based on an employee’s or a dependent’s reproductive health decision-making.” The three organizations, represented by the Alliance Defending Freedom, oppose abortion on explicitly faith-based grounds while supporting either medical care for pregnancies or foster care. They assert, logically, that the 2019 law infringes on their right to employ only those people who agree with and live by those principles.
From the reverse angle, it would be equally absurd for a law to force an abortion provider such as Planned Parenthood to employ an outspoken pro-life advocate as its chief pregnancy counselor. The three anti-abortion centers have a stronger argument, though, even than Planned Parenthood would because their assertion of rights isn’t merely associational but also faith-based, meaning not just one but two of the First Amendment’s protections are involved.
These days, most Democratic politicians and the judges they appoint, almost all of whom now support broad abortion rights, are far less willing to defend religious free expression when challenged by advocates of “choice” or of sexual minorities. Sure enough, the three 2nd Circuit judges could not bring themselves to ratify the pro-life groups’ claim that that law explicitly violates their freedom to “exercise” their faith. Even the three judges, though, citing ample court precedent, including a recent decision of the 2nd Circuit itself, felt compelled to rule that the New York law might violate the “associational rights” of the two pregnancy-resource groups and the church. Recognizing those precedents, the circuit judges sent the case back to the district court to consider those associational rights claims further.
The very nature of the associational rights involved are actually defined by the faith-based missions.
“The Supreme Court has made clear,” the judges wrote, that the “freedom of association ‘plainly [also] presupposed a freedom not to associate [emphasis added].’” The court wrote that this allows an association, “plausibly” and “implicitly” including an employer, “to exclude or expel a member it does not desire.”
While even some First Amendment claims cannot be used to justify invidious discrimination based on race, the constitutional freedom of association or nonassociation otherwise should enjoy strong protections and strong presumptions in its favor.
Without getting entangled further into the court’s legal weeds, it suffices to emphasize the court’s recognition that if a law threatens “the very mission of [an] organization,” as this law appears to do to the three plaintiffs, then the plaintiffs have strong grounds to argue that their First Amendment rights are being violated.
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Simple logic makes the principle asserted by the plaintiffs compelling. A pro-life or pro-choice group shouldn’t be forced to employ someone who acts contrary to its mission any more than, say, an anti-marijuana group should be forced to employ a marijuana smoker or a nuclear power plant should be compelled to hire an anti-nuclear weapon activist. Again, that’s just common sense.
This should be an easy case. What the three Democratic appointees did with apparent reluctance but at least with baseline fealty to the Constitution should not be a close call. Of course, New York’s law infringes on the First Amendment, in even more ways than the judges acknowledge. But even their too-tepid acknowledgment, in context, is reassurance that the First Amendment stands strong.
This article was originally published at www.washingtonexaminer.com
