Supreme Court Denies Certiorari In Church Property Dispute

The U.S. Supreme Court today denied review in two related cases, All Saints Episcopal Church v. Diocese of Fort Worth (Docket No. 20-534) and The Episcopal Church v. Diocese of Fort Worth (Docket No. 20-536), certiorari denied 2/22/2021. (Order List.) In the cases, the Texas Supreme Court resolved a factional property dispute between a break-away congregation and The Episcopal Church. It held that using neutral principles, property of the diocese belongs to the withdrawing faction that affiliated with the more conservative Anglican Province of the Southern Cone. (See prior posting.)

Supreme Court Grants Review of Title X Rule Restricting Abortion Counseling

The U.S. Supreme Court today granted certiorari (Order List, 2/22/2021) in three related cases challenging a Final Rule promulgated by the Department of Health and Human Services in March 2019. (See prior posting.) The rule imposes new restrictions on health care providers receiving Title X family planning funds.  As described in the AMA's petition for certiorari:

The Rule both prohibits and compels certain pregnancy-related speech between a Title X provider and her patient, proscribing abortion related information but requiring information about non-abortion options—regardless of what the patient wants. The Rule also imposes burdensome physical separation requirements on any Title X provider engaging in abortion-related activities outside the Title X program.

The cases (with links to their SCOTUSblog case pages) are American Medical Association v. Cochran (Docket No. 20-429),  Cochran v. Mayor and City Council of Baltimore (Docket No. 20-454), and Oregon v. Cochran (Docket No. 20-539). The Hill reports on the Court's action.

Cert. Petition Filed In Ecclesiastical Abstention Case

A petition for certiorari (full text) was filed in the U.S. Supreme Court yesterday in North American Mission Board of the Southern Baptist Convention, Inc. v. McRaney, (cert. filed 2/17/2021). In the case the U.S. 5th Circuit Court of Appeals, by a vote of 9-8, denied en banc review of a panel decision that had refused to invoke the ecclesiastical abstention doctrine in a dispute between the Mission Board and its former executive director. (See prior posting.) First Liberty issued a press release announcing the filing of the petition for review.

Cert Filed In Case On Curricular Treatment of Hinduism

A petition for certiorari (full text) was filed this week in the U.S. Supreme Court in California Parents for the Equalization of Educational Materials v. Torlakson,(cert. filed 2/16/2021). In the case,  the U.S. 9th Circuit Court of Appeals upheld the dismissal of a suit claiming that California's History-Social Science Standards and Framework incorrectly describe Hinduism and treat it negatively in relation to the treatment of other religions. (See prior posting.) The cert petition frames the question presented as:

Whether the Free Exercise Clause permits the government to single out a religion for disfavored treatment so long as it does not “substantially burden” religious exercise.

[Thanks to Glenn Katon for the lead.]

Another Church Seeks Supreme Court's Intervention On COVID-19 Restrictions

Continuing the flow of cases asking the U.S. Supreme Court to intervene to allow churches to to hold worship services at greater capacity than allowed by state COVID-19 orders, an emergency application for an injunction or summary reversal (full text) was filed with the Supreme Court on Feb. 11 in Calvary Chapel of Bangor v. Mills. In the case, the U.S. 1st Circuit Court of Appeals held that the district court's denial of a temporary restraining order was not appealable before the district court rules on the church's preliminary injunction request. (See prior posting.) Liberty Counsel issued a press release announcing the filing.

Supreme Court Allows Execution Only If Clergy of Choice Allowed In Execution Chamber

As reported by SCOTUSblog, in a jigsaw puzzle-like set of opinions and orders the U.S. Supreme Court last night just before midnight Eastern Time allowed Alabama to move ahead with the execution of convicted murderer Willie Smith-- but only if the state allowed him to have the Pastor of his choice with him in the execution chamber. In Dunn v. Smith, (US Sup. Ct., Feb. 11, 2021), a majority of the Court refused to lift an injunction issued the day before by the 11th Circuit (see prior posting) holding that Alabama's exclusion of all clergy from the execution chamber violates RLUIPA. The order refusing to vacate the 11th Circuit's injunction was unsigned. However Justice Kagan wrote a concurring opinion, joined by Justices Breyer, Sotomayor and Barrett, saying that RLUIPA "sets a high bar for Alabama to clear." They added:

Prison security is, of course, a compelling state interest. But past practice, in Alabama and elsewhere, shows that a prison may ensure security without barring all clergy members from the execution chamber. Until two years ago, Alabama required the presence of a prison chaplain at an inmate’s side. (It gave up the practice only when this Court barred States from providing spiritual advisors of just one faith.) Still more relevant, other jurisdictions have allowed clergy members with no connection to the government to attend an inmate’s execution.... , dissenting from denial of application to vacate injunction). Nowhere, as far as I can tell, has the presence of a clergy member (whether state-appointed or independent) disturbed an execution.

Justice Kavanaugh, in an opinion joined by Chief Justice Roberts, dissented, saying in part:

Because the State’s policy is non-discriminatory and, in my view, serves the State’s compelling interests in ensuring the safety, security, and solemnity of the execution room, I would have granted the State’s application to vacate the injunction.

Justice Thomas indicated (without joining the dissenting opinion) that he would have vacated the 11th Circuit's injunction.   Neither Justice Alito or Gorsuch indicated how they voted, but at least one of them would have had to agree with the 11th Circuit for the majority vote which the Court's unsigned Order commanded.

But this did not end the matter because there was also another outstanding stay of execution in the case which the 11th Circuit had granted on Feb. 10 in order to consider a different challenge to the execution. The Supreme Court yesterday vacated that stay (Order List) so that the execution, with the Pastor present, could move ahead.

As reported by SCOTUSblog, in the end the execution was not carried out because the execution warrant expired a midnight Central Time, only one hour after the Supreme Court orders were handed down.

Cert. Petition Filed In Maine's Tuition Reimbursement Controversy

A petition for certiorari (full text) was filed with the U.S. Supreme Court last Thursday in Carson v. Makin. In the case, the U.S. 1st Circuit Court of Appeals upheld Maine's statutory provisions that pay 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. Religious high schools do not qualify. (See prior posting.) Institute of Justice issued a press release  announcing the filing of the lawsuit. [Thanks to Michael Bindas and Chris Freund for the lead.]

Supreme Court Enjoins, Pending Appeal, California's Total Ban On Indoor Worship Services

Yesterday, in another decision on the Court's so-called "shadow docket", the U.S. Supreme Court in South Bay United Pentecostal Church v. Newsom, (US Sup. Ct., Feb. 5, 2021), enjoined while a petition for certiorari is pending a portion of California's restrictions on indoor worship services. Last month, the 9th Circuit upheld the restrictions. Now the Supreme Court temporarily enjoined enforcement of the state's total ban on indoor worship services in areas of the highest COVID-19 infection ("Tier I"). However it refused to enjoin the state's 25% capacity limits on worship services in Tier I, and refused to enjoin its ban on singing and chanting during services. The Court, in its unsigned order, added:

This order is without prejudice to the applicants presenting new evidence to the District Court that the State is not applying the percentage capacity limitations or the prohibition on singing and chanting in a generally applicable manner.

Chief Justice Roberts filed a brief concurring statement, saying in part:

[F]ederal courts owe significant deference to politically accountable officials with the “background, competence, and expertise to assess public health.”... At the same time, the State’s present determination—that the maximum number of adherents who can safely worship in the most cavernous cathedral is zero—appears to reflect not expertise or discretion, but instead insufficient appreciation or consideration of the interests at stake.

Justice Barrett, joined by Justice Kavanaugh, filed a brief concurring opinion. 

Justices Thomas, Gorsuch and Alito would also have enjoined the capacity limits and the ban on singing and chanting. However Justice Alito would have postponed the injunction on capacity limits for 30 days to give the state an opportunity to show that these limits are narrowly drawn to reduce COVID spread to the same extent as limits on other essential activities. Justice Gorsuch, joined by Justices Thomas and Alito, filed an opinion explaining their position, saying in part:

Since the arrival of COVID–19, California has openly imposed more stringent regulations on religious institutions than on many businesses....

Of course we are not scientists, but neither may we abandon the field when government officials with experts in tow seek to infringe a constitutionally protected liberty. The whole point of strict scrutiny is to test the government’s assertions, and our precedents make plain that it has always been a demanding and rarely satisfied standard....

Drafting narrowly tailored regulations can be difficult. But if Hollywood may host a studio audience or film a singing competition while not a single soul may enter California’s churches, synagogues, and mosques, something has gone seriously awry.

Justice Kagan, joined by Justices Breyer and Sotomayor, dissented, saying in part:

California’s response to the COVID pandemic satisfies that neutrality rule by regulating worship services the same as other activities “where large groups of people [come together] in close proximity for extended periods of time.”... The restricted activities include attending a worship service or political meeting; going to a lecture, movie, play, or concert; and frequenting a restaurant, winery, or bar. So the activities are both religious and secular—and many of the secular gatherings, too, are constitutionally protected....

The Court has decided that the State must exempt worship services from the strictest aspect of its regulation of public gatherings. No one can know, from the Court’s 19-line order, exactly why: Is it that the Court does not believe the science, or does it think even the best science must give way? In any event, the result is clear: The State may not treat worship services like activities found to pose a comparable COVID risk, such as political meetings or lectures. Instead, the State must treat this one communal gathering like activities thought to pose a much lesser COVID risk, such as running in and out of a hardware store. In thus ordering the State to change its public health policy, the Court forgets what a neutrality rule demands. The Court insists on treating unlike cases, not like ones, equivalently.

Vox reports on the decision, with particular attention to Justice Barrett's opinion-- her first signed opinion since joining the Court.

Supreme Court: FSIA Shields Germany From Suit Over Nazi Takings of German-Jewish Property

Yesterday in Federal Republic of Germany v. Philipp, (Sup. Ct., Feb. 3, 2021), the U.S Supreme Court held that the Foreign Sovereign Immunities Act (FSIA) precludes plaintiffs from filing suit in U.S. courts to recover for Jewish property taken by the Nazi government from German nationals.  Plaintiffs sued over the Nazi government's coercing a consortium of German Jewish art dealers to sell an art collection to Prussia at a one-third of its value. The FSIA provides that foreign countries, with certain exceptions, are immune from suit in U.S. courts.  Plaintiffs contended that the exception for cases  "in which rights in property taken in violation of international law are in issue" should apply because the coerced sale of their property was an act of genocide.

 A unanimous Supreme Court rejected plaintiffs' argument on two grounds. First it held that the exception for property taken in violation of international law does not include expropriation of property from a country's own nationals. Second it held that the exception for property taken in violation of international law does not apply to property taken in violation of international human rights law, saying in part: 

We need not decide whether the sale of the consortium’s property was an act of genocide, because the expropriation exception is best read as referencing the international law of expropriation rather than of human rights. We do not look to the law of genocide to determine if we have jurisdiction over the heirs’ common law property claims. We look to the law of property.

The Court yesterday also remanded Republic of Hungary v. Simon, (Sup. Ct., Feb. 3, 2021), for further consideration in light of tis decision in Germany v. Philipp. That case is a class action claim for property taken by the Hungarian government from Hungarian Jews during the Holocaust.

SCOTUSblog discusses the decisions.

Church Again Asks Supreme Court To Invalidate California COVID Restrictions

In its continuing challenge to California's COVID-19 restrictions on worship services, a California church is again seeking an emergency injunction from the Supreme Court.  The application for an injunction (full text) in Harvest Rock Church, Inc. v. Newsom, (Sup. Ct., filed 1/26/2021) challenges the 9th Circuit's decision earlier this week upholding California's total ban on indoor worship services in highest risk (Tier I) areas, while striking down 100- and 200-person limits at places of indoor worship in Tier 2 and 3 areas. In December, the Supreme Court had remanded the case for further consideration. (See prior posting.) Liberty Counsel issued a press release announcing the filing of the latest application with the Supreme Court.

Supreme Court GVRs Chaplain-In-Execution-Chamber Case

Yesterday, the U.S. Supreme Court, in a dispute over execution procedures, granted review, vacated the judgment below and remanded the case in Gutierrez v. Saenz (Docket No. 19-8695, GVR 1/25/2021). (Order List.) The case challenges Texas' exclusion of chaplains from the execution chamber.  In June, 2020, a day before appellant's scheduled execution, the Supreme Court granted a stay of execution pending its decision on whether to grant review. (See prior posting.) As part of that order, the Supreme Court instructed the district court to  promptly determine whether serious security problems would result if a prisoner facing execution is permitted to choose the spiritual adviser the prisoner wishes to have in his immediate presence during the execution. Apparently the Texas federal district court made additional findings of fact in Nov. 2020. Yesterday, the U.S. Supreme Court granted certiorari and vacated the 5th Circuit's earlier rejection of the trial court's stay of execution. Yesterday's Supreme Court Order went on to provide:

The case is remanded to the Court of Appeals with instructions to remand the case to the District Court for further and prompt consideration of the merits of petitioner’s underlying claims regarding the presence of a spiritual advisor in the execution chamber in light of the District Court’s November 24, 2020 findings of fact. Although this Court’s stay of execution shall terminate upon the sending down of the judgment of this Court, the disposition of the petition for a writ of certiorari is without prejudice to a renewed application regarding a stay of execution should petitioner’s execution be rescheduled before resolution of his claims regarding the presence of a spiritual advisor in the execution chamber.

Austin American-Statesman reports on the decision.

Review Denied In Challenge To Nevada's Limit on Worship Services

The U.S. Supreme Court today denied a petition for certiorari before judgment in Calvary Chapel Dayton Valley v. Sisolak, (Docket No. 20-639, cert. denied 1/25/2021). (Order List.) At issue is the constitutionality of Nevada Governor Steve Sisolak's COVID-19 Order limiting indoor worship services to no more than 50 people with social distancing. The SCOTUSblog case page has links to all the pleadings in the case. The Supreme Court previously refused to enjoin enforcement of the Order pending appeal. (See prior posting.)

Supreme Court Dismisses and Vacates Judgment Below In Temporary Texas Abortion Ban Controversy

The U.S. Supreme Court today granted certiorari in Planned Parenthood v. Abbott, (Docket No. 20-305, Jan. 25, 2021) (Order List), summarily vacated the judgment below and remanded the case to the 5th Circuit with instructions to dismiss the case as moot. The case began as a challenge to Texas Gov. Greg Abbott's order temporarily barring most elective abortions during the COVID-19 crisis. Subsequently the Governor permitted abortion services to resume. At issue in the case now was whether the Supreme Court would vacate the Court of Appeals judgments below so that they would no longer serve as precedent in other cases. (See petition for certiorari.) The SCOTUSblog case page has links to all the pleadings in the case.

Supreme Court Allows Enforcement of FDA Rule On Medical Abortions While Appeals Are Pending

The U.S. Supreme Court in Food & Drug Administration v. American College of Obstetricians & Gynecologists, (US Sup. Ct., Jan 12, 2021), stayed a Maryland federal district court's injunction pending appeal of an FDA rule on access to medical abortions. The FDA requires mifepristone, one of two drugs necessary for a medical abortion, to be picked up in person by the patient at a hospital, clinic or medical office.  The district court had continued to enjoin that requirement during the COVID epidemic, even though in October the Supreme Court had sent the case back for further consideration by the district court.  Now, in a case on its so-called "shadow docket" (cases seeking emergency relief without full oral argument) the Supreme Court in an unsigned opinion has granted a stay of the injunction pending disposition of appeals in the 4th Circuit and Supreme Court.

Chief Justice Roberts filed a brief concurring opinion, stating in part:

The question before us is not whether the requirements for dispensing mifepristone impose an undue burden on a woman’s right to an abortion as a general matter. The question is instead whether the District Court properly ordered the Food and Drug Administration to lift those established requirements because of the court’s own evaluation of the impact of the COVID–19 pandemic. Here as in related contexts concerning government responses to the pandemic, my view is that courts owe significant deference to the politically accountable entities with the “background, competence, and expertise to assess public health.”

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

Due to particularly severe health risks, vastly limited clinic options, and the 10-week window for obtaining a medication abortion, the FDA’s requirement that women obtain mifepristone in person during the COVID–19 pandemic places an unnecessary and undue burden on their right to abortion....

What rejoinder does the Government have to the possibility that refusing to suspend the FDA’s in-person requirements for mifepristone during the COVID–19 pandemic will cause some women to miss the 10-week window altogether? No cause for concern, the Government assures this Court, because even if the FDA’s in-person requirements cause women to lose the opportunity for a medication abortion, they can still seek out a surgical abortion. What a callous response.

Justice Breyer dissented without filing or joining an opinion.  SCOTUSblog has further coverage of the decision.

Supreme Court Will Hear Arguments Today In College Speech Policy Case

The U.S. Supreme Court hears oral arguments this morning in Uzuegbunam v. Preczewski. The case grows out of a challenge to Georgia Gwinnett College's speech policies that led to a student being stopped from distributing religious literature on campus. Subsequently, the school changed its policies.  The U.S. 11th Circuit Court of Appeals held that the change mooted plaintiff's claim for nominal damages. (See prior posting.) The 10:00 am oral arguments may be viewed live at this link. I will update this post to include a link to the written transcript of the arguments when it becomes available later today. SCOTUSblog's case page contains links to all the briefs filed in the case. Colorado Politics reports on the decisions.

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

Supreme Court Denies Review In Discrimination Suit By Muslim Flight Attendant

The U.S. Supreme Court today denied review in Stanley v. ExpressJet Airlines, Inc., (Docket No. 20-495, certiorari deied 1/11/2021). (Order List.) In the case, the U.S. 6th Circuit Court of Appeals held that a Muslim flight attendant's religious discrimination claim should have been submitted to arbitration. It also rejected her retaliation claim. The flight attendant sought a religious accommodation so that she would not need to prepare or serve alcohol during flights. At issue in the case was the scope of the Railway Labor Act's mandatory arbitration provisions.

Supreme Court Denies Review In Clinic Buffer Zone Case

The U.S. Supreme Court today denied review in Bruni v. City of Pittsburgh, Pennsylvania, (Docket No. 19-1184, certiorari denied 1/11/2021). (Order List [scroll to pg. 25]). In the case, the U.S. 3rd Circuit Court of Appeals upheld a Pittsburgh ordinance that creates a 15-foot buffer zone outside any health care facility, including a Planned Parenthood clinic. Congregating, patrolling, picketing and demonstrating in such areas are banned. (See prior posting.) Justice Thomas added a statement to his vote to deny review, saying that in an appropriate case the Court should re-examine whether intermediate scrutiny is the correct test in buffer zone cases. ADF issued a press release on the denial of certiorari.

Supreme Court, 7-2, Refuses To Reinstate Injunction Against Kentucky School Closing Order

 In Danville Christian Academy, Inc. v. Beshear, (US Sup. Ct., Dec. 17, 2020), the U.S. Supreme Court by a vote of 7-2 refused to reinstate a district court's injunction against the Kentucky governor's November 18 COVID-related school closing order. The 6th Circuit had stayed the injunction. The governor's Order was challenged by a Christian school. The majority said in part:

The Governor’s school-closing Order effectively expires this week or shortly thereafter, and there is no indication that it will be renewed. The Order applies equally to secular schools and religious schools, but the applicants argue that the Order treats schools (including religious schools) worse than restaurants, bars, and gyms, for example, which remain open. For the latter reason, the applicants argue that the Order is not neutral and generally applicable....

Under all of the circumstances, especially the timing and the impending expiration of the Order, we deny the application without prejudice to the applicants or other parties seeking a new preliminary injunction if the Governor issues a school-closing order that applies in the new year.

Justice Alito filed a dissenting opinion that Justice Gorsuch joined. And Justice Gorsuch filed a dissenting opinion that Justice Alito joined. SCOTUSblog discusses the decision. (See prior related posting.)

Supreme Court Sends Two Cases On COVID Limits Back For Reconsideration

In two separate cases today, the U.S. Supreme Court vacated district court opinions (1, 2) denying churches or clergy injunctions against state COVID-19 orders. The Supreme Court ordered those courts to reconsider the cases in light of the Supreme Court's recent decision in Roman Catholic Diocese of Brooklyn v. Cuomo. In one of today's cases, High Plains Harvest Church v. Polis, (Sup. Ct., Dec. 15, 2020), challenging Colorado restrictions, Justice Kagan, joined by Justices Breyer and Sotomayor dissented on the ground that the case is now moot since the challenged capacity limits have already been lifted. In the second case, Kevin v. Murphy, (Sup. Ct., Dec. 15, 2020), challenging New Jersey restrictions, no dissents to the one paragraph order were recorded. SCOTUSblog has more on the decisions. [updated]

Supreme Court Holds That RFRA Authorizes Damage Actions Against Federal Officials

The U.S. Supreme Court today in Tanzin v. Tanvir, (Sup. Ct., Dec. 10, 2020), held that the Religious Freedom Restoration Act permits suits for damages against federal officials in their individual capacities. In an 8-0 opinion (written by Justice Thomas), the court described the case as follows:

Respondents Muhammad Tanvir, Jameel Algibhah, and Naveed Shinwari are practicing Muslims who claim that Federal Bureau of Investigation agents placed them on the No Fly List in retaliation for their refusal to act as informants against their religious communities. Respondents sued various agents in their official capacities, seeking removal from the No Fly List. They also sued the agents in their individual capacities for money damages. According to respondents, the retaliation cost them substantial sums of money: airline tickets wasted and income from job opportunities lost.

Focusing on RFRA's authorization of suits seeking "appropriate relief" against the federal government or government officials, the Court said in part:

A damages remedy is not just “appropriate” relief as viewed through the lens of suits against Government employees. It is also the only form of relief that can remedy some RFRA violations.

Justice Barrett did not take part in the decision.