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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Terrell v. Torres

Docket: CV-19-0106-PR

Opinion Date: January 23, 2020

Judge: Ann Timmer

Areas of Law: Contracts, Family Law

The Supreme Court affirmed the order of the family court directing the donation of cryopreserved embryos to another couple following the parties' divorce, holding that the parties' agreement directing the disposition of the embryos did not grant the family court discretion in awarding the embryos but, rather, directed donation of the embryos. After Husband petitioned for divorce he asked that the couple's seven viable cryogenically preserved embryos be donated to another couple. The family court found that the "Embryo Cryopreservation & Embryo Disposition" agreement entered into by the parties did not resolve whether either party should get the embryos or whether they should be donated. The court balanced the parties' interests and concluded that Husband's right not to be compelled to be a parent outweighed Wife's right to procreate and directed that the embryos be donated to another couple. The Supreme Court affirmed but on different grounds, holding that the agreement required donation of the embryos and did not grant the family court discretion to make either a unilateral award or direct donation.