Civil Liberty Law
Defending important personal freedoms protected by the Bills of Rights is a core principle of our firm. That’s why challenging constitutional, civil liberty and pro bono work is a key part of our practice.
Delaware Voting Case
On October 5, 2022 our firm, along with our co-counsel Kirstein & Young PLLC, filed an amicus curiae brief on behalf of Lawyers Democracy Fund in connection with a challenge to Delaware’s Vote-by-Mail Statute.
On October 7, 2022, the Delaware Supreme Court issued a per curiam decision supporting our position, finding that the challenged statute “impermissibly expands the categories of absentee voters identified in Article V, Section 4A of the Delaware Constitution.”
Free Exercise Cases
Our work includes defending the First Amendment Free Exercise rights of a Delaware home church.
It also includes defending the religious freedoms of our clients. To such ends, on December 1, 2021 our firm, along with our co-counsel The Neuberger Firm, filed a lawsuit in the Court of Chancery challenging the constitutionality of Delaware State Governor Carney’s various emergency orders issued throughout the first 14 weeks of the COVID lockdown in 2020. Under the Delaware Constitution, we are seeking an injunction against Emergency Orders like the ones Governor Carney issued:
(1) prohibiting in person Sunday religious services;
(2) preventing indoor preaching;
(3) banning singing;
(4) barring the elderly from church;
(5) prohibiting Baptism;
(6) prohibiting the Lord’s Supper; and
(7) favoring one religion over another.
On November 22, 2022, Vice Chancellor Laster dismissed our complaint on the lack of subject matter jurisdiction, and transferring the case to Delaware’s Superior Court where we intend to proceed to a jury trial.
Native American Cases
In addition, our firm has represented the Native American Guardian’s Association (NAGA) in various matters across the country. NAGA is a section 501(c)(3) non-profit organization that focuses on increased education about Native Americans, especially in public educational institutions. It seeks greater recognition of Native American heritage through sports and other high-profile public venues. NAGA has been partnering with public schools across the country to help those schools (a) eliminate stereotypical “mascot” caricatures and iconography, chants and cheers, and (b) develop respectful and culturally appropriate Native American names, logos, iconography and imagery.
NAGA agrees with most Americans that no person or nation of people should be a “mascot.” That is why it regularly opposes the use of Native American mascot performers and caricatures that mock and ridicule Indians and their heritage—such as the Atlanta Braves’ former Indian caricature Chief Noc-A-Homa—in sports and other public venues. Fortunately, these Indian impersonators were removed long ago because of their negative impact on Native Americans.
But the term “mascot” is a word used by those who seek to eradicate Native American heritage from public view, as well as non-Native American “concerned bystanders” who are not the target of the State laws that discriminate against Native Americans but who are easily offended by Native American names, logos, and imagery. That’s why NAGA believes that culturally appropriate Native American names, logos, and imagery are important to honor Native Americans, and to help public schools neutralize offensive and stereotypical Indian caricatures and iconography while teaching students and the general public about Native American history.
That’s also why in November 2021 our firm, along with our co-counsel Mountain States Legal Foundation (MSLF), filed a civil-rights action in the U.S. District Court for the District of Colorado challenging the constitutionality of SB 21-116. The lawsuit was filed on behalf of NAGA and five other Native American plaintiffs living in Colorado. SB 21-116, which is titled “Prohibition of American Indian Mascots in Colorado,” prohibits the use of Native American “mascots” by public schools and public institutions of higher education, as of June 1, 2022. SB 21-116’s definition of “mascot” is wildly overbroad, and includes not just sports team monikers, but also names on logos and images on school letterhead. That means that schools have had to hide or destroy old yearbooks, sports team jerseys, and trophies.
For impacted schools do not comply with the law face a $25,000 per month fine, for each month that the school continues to use a prohibited image or name after that date. We alleged in our complaint that the law violates our clients’ First Amendment and Fourteenth Amendment rights, as well as Title VI of the Civil Rights Act of 1964. In the view of the plaintiffs, SB 21-116 did not differentiate between mascot performers and caricatures that mock and ridicule Indians and their heritage and culturally appropriate Native American names, logos, and imagery, sweeping the potentially good away with the bad.
On December 1, 2021, District Court Judge Regina Rodriguez denied our request for an injunction aimed at pausing implementation of this Colorado law. We filed an interlocutory appeal of that decision the following day.
Following the denial of our interlocutory appeal, we filed summary judgment briefs in the District Court. On May 5, 2022, U.S. District Court Judge Rodriguez dismissed our amended complaint primarily on “standing” grounds, ruling that our clients weren’t directly injured by the law, even though it was intended to eliminate Native American names and images in schools across Colorado.
Our Legal Partners
Our legal partners include, among others, the Alliance Defending Freedom, Liberty Counsel, Mountain States Legal Foundation, Lawyers Democracy Fund, The Neuberger Firm, Jacobs & Crumplar, Martin D. Haverly, and Kirstein & Young PLLC.