Supreme Court Upholds NY Vaccine Mandate Without Religious Exemption-- This Time Over 14-Page dissent

In Dr. A v. Hochul, (Sup. Ct., Dec. 13, 2021), the U.S. Supreme Court today by a vote of 6-3, refused to enjoin enforcement of New York's COVID vaccine mandate which has no religious exemptions.  This is a companion case to We The Patriots USA v. Hochul which reached a similar result with no Justices filing opinions to accompany the Court's order. (See prior posting.) In Dr. A, Justice Gorsuch filed a 14-page dissent, joined by Justice Alito. The opinion reads in part:

Under the Free Exercise Clause, government “cannot act in a manner that passes judgment upon or presupposes the illegitimacy of religious beliefs and practices.” ...  As a result, we have said that government actions burdening religious practice should be “set aside” if there is even “slight suspicion” that those actions “stem from animosity to religion or distrust of its practices.”...

New York’s mandate is such an action. The State began with a plan to exempt religious objectors from its vaccine mandate and only later changed course. Its regulatory impact statement offered no explanation for the about-face. At the same time, a new Governor whose assumption of office coincided with the change in policy admitted that the revised mandate “left off ” a religious exemption “intentionally.” The Governor offered an extraordinary explanation for the change too. She said that “God wants” people to be vaccinated—and that those who disagree are not listening to “organized religion” or “everybody from the Pope on down.”

Justice Thomas dissented without an opinion. National Law Journal has more on the decision.

Supreme Court Denies Relief In Challenge To NY Vaccine Mandate That Lacks Religious Exemption

In another "shadow docket" case, the U.S. Supreme Court today in a brief Order (full text) denied injunctive relief in We The Patriots USA v. Hochul. Justices Thomas, Alito and Gorsuch dissented. The case was a challenge to the elimination of religious exemptions from New York's requirement that health care workers be vaccinated against COVID. The 2nd Circuit had also denied an injunction. (See prior posting.) CNBC reports on the Court's action.

Supreme Court Says Texas Heartbeat Abortion Law Can Be Challenged In Court

The U.S. Supreme Court today in Whole Woman's Health v. Jackson, (Sup. Ct., Dec. 10, 2021), held that abortion providers may sue one set of defendants in their challenge to Texas "heartbeat" abortion law. Eight of the Justices (all but Justice Thomas) concluded that Texas still involved one set of state officials in enforcement of the heartbeat abortion ban. Plaintiffs may challenge the statute by suing the state officials who have disciplinary authority over medical licensees who violate the ban. Thus Texas failed to completely insulate the law from pre-enforcement challenge. 

Justice Thomas filed a dissenting opinion arguing in part:

The principal opinion then proposes that the Texas Medical Board may enforce S. B. 8 under §164.055 of the Texas Occupations Code. Thus, on that view, S. B. 8 permits the Medical Board to discipline physicians for violating the statute despite the Act’s command that “the requirements of this subchapter shall be enforced exclusively through . . . private civil actions,” “[n]otwithstanding . . . any other law.” .... By its terms, S. B. 8’s saving clause preserves enforcement only of laws that “regulate or prohibit abortion.” 

Chief Justice Roberts, joined by Justices Breyer, Sotomayor and Kagan concluded that the Attorney General and court clerks should also be able to be sued in a challenge to the law. His opinion says in part:

The clear purpose and actual effect of S. B. 8 has been to nullify this Court’s rulings. It is, however, a basic principle that the Constitution is the “fundamental and paramount law of the nation,” and “[i]t is emphatically the province and duty of the judicial department to say what the law is.” Marbury v. Madison....  Indeed, “[i]f the legislatures of the several states may, at will, annul the judgments of the courts of the United States, and destroy the rights acquired under those judgments, the constitution itself becomes a solemn mockery.”... The nature of the federal right infringed does not matter; it is the role of the Supreme Court in our constitutional system that is at stake.

Justice Sotomayor filed a dissenting opinion, joined by Justices Breyer and Kagan, saying in part:

My disagreement with the Court runs far deeper than a quibble over how many defendants these petitioners may sue. The dispute is over whether States may nullify federal constitutional rights by employing schemes like the one at hand. The Court indicates that they can, so long as they write their laws to more thoroughly disclaim all enforcement by state officials, including licensing officials. This choice to shrink from Texas’ challenge to federal supremacy will have far-reaching repercussions....

This is a brazen challenge to our federal structure. It echoes the philosophy of John C. Calhoun, a virulent defender of the slaveholding South who insisted that States had the right to “veto” or “nullif[y]” any federal law with which they disagreed....

What are federal courts to do if, for example, a State effectively prohibits worship by a disfavored religious minority through crushing “private” litigation burdens amplified by skewed court procedures, but does a better job than Texas of disclaiming all enforcement by state officials? Perhaps nothing at all, says this Court....

Houston Public Media reports on the decision.

Then in the other challenge to the Texas law, United States v. Texas, (Sup. Ct., Dec. 10, 2021), the Court, over the dissent of Justice Sotomayor, dismissed the writ of certiorari as improvidently granted.

Transcript and Audio Of Today's Arguments In Carson v. Makin

 Here are links to the transcript and audio of this morning's Supreme Court arguments in Carson v. Makin challenging Maine's exclusion of schools that provide religious instruction from its program that pays high school tuition for students from districts without public high schools. CNN reporting on the arguments said that Justices expressed "deep skepticism" of Maine's exclusion of religious schools. [corrected]

Supreme Court Will Hear Arguments Tomorrow In Maine School Tuition Case

Tomorrow, the U.S. Supreme Court will hear oral arguments in Carson v. Makin. In the case, the U.S. 1st Circuit Court of Appeals upheld Maine's statutory provisions that call for paying tuition to out-of-district public or private high schools for students whose districts do not operate a high school. However, to qualify to receive tuition assistance payments, a private school must be non-sectarian. Schools that provide religious instruction do not qualify. (See prior posting.) 

The SCOTUSblog case page has links to the briefs and other filings in the case. The oral arguments will be streamed live at this link when the Court convenes at 10:00 AM Eastern Time on Wednesday.

Cert. Filed In Suit By Parolee Against Christian Homeless Shelter Director

A petition for certiorari (full text) was filed yesterday with the U.S. Supreme Court in Carmack v. Janny, (cert. filed 12/3/2021). In the case, the U.S. 10th Circuit Court of Appeals held that a parolee, who is an atheist, should be able to move ahead with his Free Exercise and Establishment Clause claims against his parole officer and the director of a Christian homeless shelter. To stay out of jail, plaintiff was required to stay at the shelter and participate in its religious programming. (See prior posting.) The petition for review frames the question presented as:

Whether the employee of a private, religious nonprofit may be held liable, as a state actor, for making pro bono housing and social services at the nonprofit’s facility contingent on participation in religious programming.

ADF issued a press release discussing the case.

Ministry Designated As "Hate Group" Asks Supreme Court To Reconsider "Actual Malice" Test For Defamation

A petition for certiorari (full text) has been filed with the U.S. Supreme court in Coral Ridge Media Ministries, Inc. v. Southern Poverty Law Center, (cert. filed 11/24/2021). In the case, the U.S. 11th Circuit Court of Appeals affirmed an Alabama federal district court's dismissal of a defamation and religious discrimination suit brought by a Christian ministry and media company. (See prior posting.)  Coral Ridge is designated as a "hate group" by the Southern Poverty Law Center because of Coral Ridge's religious beliefs opposing LGBTQ conduct. The court dismissed the defamation claim because plaintiff failed to adequately plead actual malice (i.e., knowledge of falsity or reckless disregard of the truth). The certiorari petition asks the Supreme Court to reconsider the actual malice standard set out in New York Times v. Sullivan. Los Angeles Blade reports on the filing of the cert. petition.

Oral Arguments In Supreme Court On Mississippi Abortion Case

Here are links to the transcript and audio of oral arguments this morning in Dobbs v. Jackson Women’s Health Organization, a challenge to the Mississippi law which bars most abortions after 15 weeks of gestation. CNN reports on the arguments.

Supreme Court Denies Injunction Pending Appeal Of Case On Vaccine Mandate Exemptions

On Monday, the U.S. Supreme Court in Together Employees v. Mass General Brigham Inc. through an Order by Justice Breyer denied an Emergency Application for an injunction pending appeal to the 1st Circuit of a district court decision. At issue is the denial to eight employees of religious or medical exemptions from a health care system's COVID vaccine mandate.  The 1st Circuit in an Opinion handed down Nov. 18 had previously denied an injunction pending appeal. Boston Globe reports on the case.

Supreme Court Will Hear Arguments Wednesday In Term's Major Abortion Case

Tomorrow morning, the U.S. Supreme Court will hear arguments in Dobbs v. Jackson Women’s Health Organization, a challenge to the Mississippi law which bars most abortions after 15 weeks of gestation. In the case, the U.S. 5th Circuit Court of Appeals struck down the statute. (See prior posting.) In granting certiorari, the Supreme Court limited the question on review to: "Whether all pre-viability prohibitions on elective abortions are unconstitutional." Mississippi's brief in the case starkly lay out the major issue, contending: "Roe and Casey are egregiously wrong. The conclusion that abortion is a constitutional right has no basis in text, structure, history, or tradition."

Amy Howe at SCOTUSblog has a preview of the arguments. The SCOTUSblog case page has links to the vast number of amicus briefs and other filings in the case. The oral arguments will be streamed live at this link when the Court convenes at 10:00 AM Eastern Time on Wednesday.

141 Amicus Briefs Filed In Mississippi Abortion Law Case

Oral arguments in Dobbs v. Jackson Women’s Health Organization, the much-watched Mississippi abortion case, will be heard by the Supreme Court on December 1. A near-record number of amicus (friend-of-the-court) briefs have been filed in the case-- 141 in total on the merits. Links to nearly all of the briefs are available on the SCOTUS blog case page for the case. A 2020 National Law Journal article says that the record for number of amicus briefs in one Supreme Court case is 156.

Cert. Denied In Challenge To Oregon's Limits On Parochial Schools

The U.S, Supreme Court today denied review in Horizon Christian School v. Brown, (Docket No. 21-567, certiorari denied 11/15/2021). (Order List).  In the case, the U.S. 9th Circuit Court of Appeals in an Aug. 2 opinion (full text) affirmed the denial of a preliminary injunction against Oregon's previous COVID-19 restrictions on in-person schooling. The suit was brought by parents of students who attend religious schools. (See prior related posting.)

Supreme Court Hears Arguments On Role Of Chaplain In Execution Chamber

The Supreme Court hears oral arguments this morning in Ramirez v. Collier. In the case, a convicted murderer is suing for permission to have his pastor lay hands on him as he receives a lethal injection and dies. The 5th Circuit, by a vote of 2-1, affirmed a Texas federal district court's refusal to grant a stay of execution. However the Supreme Court granted a stay and scheduled early oral argument in the case. (See prior posting.) Here is the SCOTUS blog case page with links to filings in the case. AP has more background. The oral arguments will be live-streamed here. I will update this post with links to the transcript and audio of the oral arguments when they become available.

UPDATE: Here are links to the transcript and audio of arguments in the case. SCOTUS blog reports on the oral arguments.

Supreme Court Will Hear Oral Arguments In FISA And Muslim Surveillance

The U.S. Supreme Court this morning will hear oral arguments in Federal Bureau of Investigation v. Fazaga. This case grows out of a suit for damages against FBI agents for discriminatory surveillance of Muslims in California. The issue for the Supreme Court is whether a provision in FISA displaces the state secrets privilege to allow the district court to move ahead in camera, rather than dismissing the claims. Here is the SCOTUS blog case page with links to all of the filings in the case. The arguments will be streamed live by the Court at 10:00 AM from this link. Al Jazeera has a lengthy report on the background of the case. When the transcript and audio of today's oral arguments become available, I will update this post with links.

UPDATE: Here are links to the transcript and audio of the oral arguments. AP reports on the oral arguments.

Supreme Court GVR's Challenge To New York's Abortion Coverage Mandate

In Roman Catholic Diocese v. Emami, (Docket No. 20-1501, GVR, 11/1/2021) (Order List) the U.S. Supreme Court today granted certiorari, vacated the judgment below and remanded the case to New York's Appellate Division for further consideration in light of Fulton v. Philadelphia. Justices Thomas, Alito and Gorsuch would have granted full review of the New York decision. In the case, the New York court rejected a challenge by several religious organizations and other plaintiffs to a New York administrative regulation requiring health insurance policies in New York to provide coverage for medically necessary abortion services. (See prior posting.) Becket Law issued a press release discussing the Court's action.

Certiorari Denied In Catholic Hospital's Free Exercise Claim

The U.S. Supreme Court today denied review in Dignity Health v. Minton, (Docket No. 19-1135, certiorari denied 11/1/2021) (Order List.) Justices Thomas, Alito and Gorsuch would have granted review. In the case, a California state appellate court (full text of opinion) held that California's Unruh Civil Rights Act allows a suit against a Catholic hospital for unequal access by a transgender man whose doctor was not permitted to perform a hysterectomy on him at the hospital. The hospital argued that performing the procedure would violate its long-held religious beliefs.

Supreme Court Will Hear Arguments Today In Texas "Heartbeat" Abortion Ban

The U.S. Supreme Court will hear arguments this morning in two cases challenging the Texas "heartbeat" abortion ban. The question the Supreme Court agreed to consider is not the ultimate constitutionality of the ban, but whether Texas has effectively insulated the law from pre-enforcement challenge.  In Whole Woman’s Health v. Jackson, the question presented by the petition for certiorari is:

whether a State can insulate from federal-court review a law that prohibits the exercise of a constitutional right by delegating to the general public the authority to enforce that prohibition through civil actions.

In United States v. Texas, the Supreme Court's grant of certiorari was limited to the question:

May the United States bring suit in federal court and obtain injunctive or declaratory relief against the State, state court judges, state court clerks, other state officials, or all private parties to prohibit S.B. 8 from being enforced.

The SCOTUS blog case pages for the cases (1, 2 ) have links to all the filings by the parties, as well as to the numerous amicus briefs that have been filed. SCOTUS blog has an extensive preview of the arguments. The arguments will be streamed live by C-SPAN.  At 10:00 AM (EST) arguments in Whole Woman's Health can be heard here. At 11:00 AM (EST) arguments in U.S. v. Texas can be  heard here. I will update this post to furnish links to the transcripts and recordings of the arguments when those become available later today.

UPDATE: Here are links to the transcript and audio of arguments in Whole Woman's Health. And here are the links in United States v. Texas.

Supreme Court, 6-3, Denies Injunction Pending Appeal In Maine COVID Vaccination Case

The U.S. Supreme Court yesterday, by a vote of 6-3, in John Does 1-3 v. Mills, (Sup. Ct., Oct. 29, 2021), refused to enjoin enforcement of Maine's COVID vaccine mandate while a petition for Supreme Court review of the 1st Circuit's decision is pending. Healthcare workers sued objecting to the absence of religious exemptions from the mandate. The 1st Circuit in an Oct. 19 opinion (full text) refused a preliminary injunction against enforcement. The Supreme Court's Order was issued without an accompanying majority opinion. However, Justice Barrett, joined by Justice Kavanaugh, issued a short concurring opinion which appears to recognize the concern with the Court's increasing use of its "shadow docket" to render important decision.  Justice Barrett wrote in part:

When this Court is asked to grant extraordinary relief, it considers, among other things, whether the applicant “‘is likely to succeed on the merits.’” ... I understand this factor to encompass not only an assessment of the underlying merits but also a discretionary judgment about whether the Court should grant review in the case.... Were the standard otherwise, applicants could use the emergency docket to force the Court to give a merits preview in cases that it would be unlikely to take—and to do so on a short fuse without benefit of full briefing and oral argument....

Justice Gorsuch, joined by Justices Thomas and Alito, filed an opinion dissenting from the denial of injunctive relief, saying in part:

Maine has so far failed to present any evidence that granting religious exemptions to the applicants would threaten its stated public health interests any more than its medical exemption already does.

This case presents an important constitutional question, a serious error, and an irreparable injury.... [H]ealthcare workers who have served on the front line of a pandemic for the last 18 months are now being fired and their practices shuttered. All for adhering to their constitutionally protected religious beliefs. Their plight is worthy of our attention.

SCOTUS blog reports on the decision.

Supreme Court Lifts Stay Of Execution Despite Inmates' Religious Objections To Sentence Conditions

The U.S. Supreme Court yesterday, by a vote of 5-3, in a brief Order (full text) vacated a stay of execution that had been entered by the 10th Circuit in Crow v. Jones (Sup. Ct., Docket No. 21A116). According to the New York Times:

The inmates, John Marion Grant and Julius Jones, had argued that the state’s [Oklahoma's] lethal injection protocol, which uses three chemicals, could subject them to excruciating pain.

They also objected on religious grounds to a requirement imposed by a trial judge that they choose among proposed alternative methods of execution, saying that doing so would amount to suicide.

Supreme Court Grants Extra Rapid Review In Texas Abortion Cases, But Postpones Granting Interim Stay

The U.S. Supreme Court today took action to decide quickly whether Texas has effectively shielded its new "heartbeat" abortion law (S.B. 8) from review.  In two cases in which emergency relief was sought, the Court granted review ahead of any decision by the Court of Appeals. In Whole Woman's Health v. Jackson, it granted a petition for certiorari before judgment. (Order List). In the case, the Supreme Court previously refused to prevent Texas' S.B.8 from continuing in effect while its constitutionality is being litigated. (See prior posting.) Also today, the Court acted in United States v. Texas, the Justice Department's challenge to the Texas law.  The Court granted certiorari before judgment and "deferred pending oral argument" the government's motion to vacate the 5th Circuit's stay of the district court's injunction barring enforcement of S.B.8. The grant of review was limited to:

May the United States bring suit in federal court and obtain injunctive or declaratory relief against the State, state court judges, state court clerks, other state officials, or all private parties to prohibit S.B. 8 from being enforced.

This parallels the question presented by the Petition for Certiorari in Whole Woman's Health:

[W]hether a State can insulate from federal-court review a law that prohibits the exercise of a constitutional right by delegating to the general public the authority to enforce that prohibition through civil actions.

In both cases, the Court ordered that petitioners' briefs (as well as any amicus briefs) be filed electronically by Oct. 27, and reply briefs be filed by Oct. 29. Oral argument in both cases is set for Nov. 1.

Justice Sotomayor filed a dissent to the Court's refusal in United States v. Texas to grant an immediate stay, pending the appellate process, of enforcement of the law, saying in part:

[T]he Court’s failure to issue an administrative stay of the Fifth Circuit’s order pending its decision on this application will have profound and immediate consequences. By delaying any remedy, the Court enables continued and irreparable harm to women seeking abortion care and providers of such care in Texas—exactly as S. B. 8’s architects intended... 

 CNN reports on the Court's action, as does the New York Times.