Justice Breyer Refuses To Enjoin Maine Vaccine Mandate Pending Appeal

As previously reported, a Maine federal district court rejected claims by health care employees that Maine violated their free exercise rights when it eliminated religious exemptions from its COVID vaccine mandate for health care workers. The 1st Circuit refused to issue an injunction pending appeal, and plaintiffs sought similar relief from the U.S. Supreme Court through a filing with Justice Breyer. Yesterday in John Does 1-2 v. Mills, Justice Breyer issued an Order reading:

The application is denied without prejudice to applicants filing a new application after the Court of Appeals issues a decision on the merits of the appeal, or if the Court of Appeals does not issue a decision by October 29, 2021.

AP reports on developments.

Justice Department Asks Supreme Court To Reinstate District Court's Injunction Against Texas Abortion Law

In United States v. Texas, the Justice Department today filed in the Supreme Court an Application (full text) to vacate the 5th Circuit's stay of a preliminary injunction that had been granted by a Texas federal district court. The application on the Court's Shadow docket was filed with Justice Alito who is assigned to take emergency filings from the 5th Circuit. At issue is the Justice Department's challenge to the Texas "heartbeat" abortion law. The Justice Department adds that the Court may treat this as a petition for a grant of certiorari before judgment. The Application says in part:

The question now is whether Texas’s nullification of this Court’s precedents should be allowed to continue while the courts consider the United States’ suit. As the district court recognized, it should not: The United States is likely to succeed on the merits because S.B. 8 is clearly unconstitutional and because the United States has authority to seek equitable relief to protect its sovereign interests -- including its interest in the supremacy of federal law and the availability of the mechanisms for judicial review that Congress and this Court have long deemed essential to protect constitutional rights.... 

Again, the Fifth Circuit disputed none of this. Instead, the divided panel’s one-paragraph order stayed the preliminary injunction solely for “the reasons stated in” two decisions addressing a prior challenge to S.B. 8.... But those reasons do not apply to this very different suit. Sovereign immunity forced the private plaintiffs in Whole Woman’s Health to sue individual state officers, and this Court and the Fifth Circuit questioned whether those officers were proper defendants. This suit does not raise those questions because it was brought against the State of Texas itself, and the State has no immunity from suits by the United States. The Fifth Circuit ignored that distinction, which refutes the court’s only justification for the stay.

Justice Alito ordered Texas to file a response by noon on Thursday.  Twenty-three states and the District of Columbia filed a joint amicus brief (full text) in support of the Justice Department.

CNN reports on these developments.

Supreme Court Denies Cert. In Case Alleging Religious Belief Discrimination

The U.S. Supreme Court on Tuesday denied review in Pasadena Republican Club v. Western Justice Center, (Docket No. 20-1773, certiorari denied 10/12/2021). (Order List). In the case, the U.S. 9th Circuit Court of Appeals dismissed a suit claiming viewpoint discrimination and religious belief discrimination by the Western Justice Center (WJC) that was leasing the historic Maxwell House from the city of Pasedena.  WJC refused to rent space to the Republican Club for a speech by the president of the National Organization for Marriage because NOM's position on same-sex marriage, gay adoption, and transgender rights are antithetical to the values of WJC.  The 9th Circuit (full text of opinion) held that WJC was not a state actor for purposes of the Republican Club’s constitutional claims, and that the the government did not become vicariously liable for the discretionary decisions of its lessee. (See prior related posting.) Pasedena Now reports on the Court's action.

Supreme Court Hears Arguments Today On State AG's Intervention To Defend Abortion Law [UPDATED]

Today the U.S. Supreme Court hears oral arguments in Cameron v. EMW Women’s Surgical Center. In the case, the U.S. 6th Circuit Court of Appeals in a 2-1 decision (full text of decision) refused to allow the state attorney general to intervene to defend the constitutionality of a Kentucky statute which banned D&E abortions prior to fetal demise. The AG sought to intervene after the 6th Circuit held the statute unconstitutional and no state official would seek a rehearing or an appeal. The Supreme Court's grant of review was limited to the question of whether intervention should have been allowed. SCOTUSblog has a preview of today's arguments. The arguments will be streamed live on C-SPAN at 10:00 a.m. EST. The SCOTUSblog case page has links to all the filings in the case. When a transcript and recordings of the arguments become available, I will update this post with links to them.

UPDATE: Here are links to the transcript and audio of the oral arguments. CNBC reports extensively on the oral arguments in an article titled Supreme Court signals it will side with Kentucky attorney general in bid to defend restrictive abortion law.

Cert. Denied In COVID, Chaplaincy and Abortion Cases

Today the U.S. Supreme Court issued its lengthy (66-page) first-day-of-the-Term Order List denying review in several hundred cases. It includes the denial of certiorari in the following:

Calvary Chapel of Bangor v. Mills (Docket No. 20-1346): In the case, the 1st Circuit Court of Appeals dismissed a church's interlocutory appeal challenging the Maine governor's COVID Orders limiting attendance at faith-based events. (See prior posting.)

Chaplaincy of Full Gospel v. Department of Navy (Docket No. 20-1794): A case in litigation for over 20 years involving allegations by non-liturgical Protestant chaplains of discrimination against them by selection boards that control promotions and early retirements of Navy chaplains. (See prior posting.)

Schmitt v. Planned Parenthood (Docket No. 21-3): A challenge to Missouri  HB 126 imposing Down Syndrome and Gestational Age limits on abortions. The Supreme Court noted: "After this petition was filed, the United States Court of Appeals for the Eighth Circuit withdrew the panel opinion from which the petition sought certiorari. Accordingly, given the absence of any opinion for our review at this time, the petition is denied  without prejudice to the filing of a new petition by either party following the Eighth Circuit’s final disposition of the case."

Supreme Court Grants Certiorari In Case On Display of "Christian Flag" At City Hall

The U.S. Supreme Court today granted review in Shurtleff v. City of Boston, (Docket No. 20-1800, certiorari granted 9/30/2021) (Docket List). In the case, the U.S. 1st Circuit Court of Appeals upheld the city of Boston's refusal to allow an organization to raise its "Christian flag" on one of the City Hall Plaza flag poles at an event that would also feature short speeches by local clergy. (See prior posting.) The SCOTUSblog case page with links to all the briefs and pleadings is here.

Supreme Court Review Sought By Christian Wedding Website Designer

A petition for certiorari (full text) was filed today with the U.S. Supreme Court in 303 Creative LLC v. Elenis, (Sup. Ct., filed 9/24/2021). In the case, the U.S. 10th Circuit Court of Appeals upheld the application of Colorado's Anti-Discrimination Act to a wedding website design company whose owner for Christian religious reasons refuses to create websites that celebrate same-sex marriages. (See prior posting.) ADF issued a press release announcing the filing of the petition for review.

Cert. Filed In Case Of Football Coach Seeking To Pray On Field

A petition for certiorari (full text) was filed with the U.S. Supreme Court yesterday in Kennedy v. Bremerton School District, (US Sup. Ct., cert. filed 9/14/2021). In the case, the U.S. 9th Circuit Court of Appeals upheld the firing of a high school football coach who insisted on prominently praying at the 50-yard line immediately after football games. A divided 9th Circuit denied en banc review. (See prior posting.) First Liberty issued a press release announcing the filing of the petition for review.

Supreme Court Grants Review On Role Of Spiritual Advisor In Execution Chamber

In Ramirez v. Collier, (5th Cir., Sept. 6, 2021), the U.S. 5th Circuit Court of Appeals, by a vote of 2-1, affirmed a Texas federal district court's refusal to grant a stay of execution to a convicted murderer who is suing for permission to have his pastor lay hands on him as he receives a lethal injection and dies. (Background from New York Times.) Texas allows spiritual advisors to be present in the execution chamber, but they may not physically touch the prisoner nor speak. Judges Owen and Higginbotham each filed an opinion concurring in the per curiam order denying a stay.  Judge Higginbotham said in part:

[T]he complexities attending the administration of drugs in the execution procedure and its failures expose the risks of non-medical hands on the body of a person undergoing the procedure. This is plainly a humane effort with constitutional footing with steps long side those of spiritual needs.

Judge Dennis dissented arguing that petitioner has made a strong showing that the state's policy substantially burdens his religious exercise in violation of RLUIPA. He said in part:

The State has not shown why its policy of prohibiting even a brief audible prayer and any physical touching is the least restrictive means of achieving its compelling interest in this specific case. Rather, the State has largely offered general concerns about security. I do not doubt that these concerns are legitimate and important. But that is not enough to satisfy RLUIPA’s “exceptionally demanding” standard.... 

However this evening, the U.S. Supreme Court granted a stay of execution and agreed to review the case. (Ramirez v. Collier, (Docket No. 21-5592, cert. granted 9/8/2021) (Order List). The Court's order granting certiorari calls for a briefing schedule that allows the case to be argued in October or November 2021.

Supreme Court, 5-4, Refuses To Enjoin Texas Heartbeat Abortion Ban

The U.S. Supreme Court yesterday in a 5-4 decision refused to prevent Texas' heartbeat abortion law (S.B. 8) from continuing in effect while its constitutionality is being litigated. The law bans abortions if the physician has detected a fetal heartbeat-- usually at around 6 weeks of a pregnancy. An unusual provision in the law allows it to be enforced only through civil actions by individuals, and not by state officials. The unsigned majority opinion in Whole Woman's Health v. Jackson, (US Sup. Ct., Sept. 1, 2021) states in part:

The applicants now before us have raised serious questions regarding the constitutionality of the Texas law at issue. But their application also presents complex and novel antecedent procedural questions on which they have not carried their burden. For example ... it is unclear whether the named defendants in this lawsuit can or will seek to enforce the Texas law against the applicants in a manner that might permit our intervention...

[T]his order is not based on any conclusion about the constitutionality of Texas’s law, and in no way limits other procedurally proper challenges to the Texas law, including in Texas state courts.

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

The statutory scheme before the Court is not only unusual, but unprecedented. The legislature has imposed a prohibition on abortions after roughly six weeks, and then essentially delegated enforcement of that prohibition to the populace at large. The desired consequence appears to be to insulate the State from responsibility for implementing and enforcing the regulatory regime.

The State defendants argue that they cannot be restrained from enforcing their rules because they do not enforce them in the first place. I would grant preliminary relief to preserve the status quo ante—before the law went into effect—so that the courts may consider whether a state can avoid responsibility for its laws in such a manner....

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

I recognize that Texas’s law delegates the State’s power to prevent abortions not to one person (such as a district attorney) or to a few persons (such as a group of government officials or private citizens) but to any person. But I do not see why that fact should make a critical legal difference. That delegation still threatens to invade a constitutional right, and the coming into effect of that delegation still threatens imminent harm.

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

The Court’s order is stunning. Presented with an application to enjoin a flagrantly unconstitutional law engineered to prohibit women from exercising their constitutional rights and evade judicial scrutiny, a majority of Justices have opted to bury their heads in the sand.

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

Today’s ruling illustrates just how far the Court’s “shadow-docket” decisions may depart from the usual principles of appellate process.

CNN reports on the decision.

Supreme Court Justice Denies Church's Application For Injunction Pending Cert. Application

Yesterday, U.S. Supreme Court Justice Stephen Breyer in Calvary Chapel of Bangor v. Mills, denied  an application (full text) by a Maine church for injunctive relief pending disposition of its petition for certiorari. The church sought to prevent Maine's governor from reinstating COVID-related restrictions on worship services while exempting other activities. AP reports on the denial.

Cert. Filed In Case On Washington State's Religious Exemption From Anti-Discrimination Law

A petition for certiorari (full text) was filed yesterday with the U.S. Supreme Court in Seattle's Union Gospel Mission v. Woods, (cert. filed 8/2/2020). In the case, Washington state's Supreme Court held that, as applied, the religious and non-profit exemption to the state's anti-discrimination law may be unconstitutional. Plaintiff in the case was denied employment as a staff attorney by a Christian legal aid program for the homeless because he was in a same-sex relationship. (See prior posting.) ADF issued a press release announcing the filing of the petition for review.

Cert. Filed In Dispute Over Ministerial Exception's Applicability To Faculty Member

A petition for certiorari (full text) was filed yesterday with the U.S. Supreme Court in Gordon College v. DeWeese-Boyd, (cert. filed 8/2/2021). In the case, the Massachusetts Supreme Judicial Court held that the ministerial exception does not apply in a suit by an associate professor of social work at a private Christian liberal arts college who claims her promotion to full professor was denied because of her vocal opposition to the school's policies on LGBTQ individuals. The court concluded that the faculty member was not a ministerial employee. (See prior posting.) ADF issued a press release announcing the filing of the petition for review.

Supreme Court Review Sought In Dispute Over Virginia Property Tax Exemption

A petition for certorari (full text) was filed with the U.S. Supreme Court yesterday in Trustees of the New Life In Christ Church v. City of Fredericksburg, Virginia, (cert. filed 8/2/2021).  The decisions below are an unreported decision from a Virginia state trial court and a Virginia Supreme Court order refusing to grant review. The petition for review filed with the U.S. Supreme Court describes the case:

New Life In Christ Church claimed the tax exemption for a property occupied by Josh and Anacari Storms. The Church explained that the Stormses are “ministers” under the Presbyterian Church in America’s Book of Church Order because they were hired to teach and spread the faith to college students in the community. The City of Fredericksburg agreed that eligibility for the exemption turned on whether the Presbyterian Church in America considered the Stormses to be ministers, but it denied the exemption because, under its reading of the Book of Church Order, only ordained persons with specific duties are ministers of that church.

One of the issues presented is whether a civil court may substitute its own interpretation of church doctrine for that of church officials. First Liberty Institute issued a press release announcing the filing of the cert. petition.

Supreme Court GVR's Amish Families' Challenge To Septic Tank Requirements

On Friday, in Mast v. Fillmore County, Minnesota, (Sup. Ct., July 2, 2021), the U.S. Supreme Court granted certiorari, summarily vacated the judgment of the Minnesota Court of Appeals, and remanded for consideration in light of the Court's recent decision in Fulton v. Philadelphia, the case of Amish families who object to state sewage system regulations. In the case, the Minnesota appellate court rejected claims by Swartzentruber Amish community members that laws requiring them to install septic systems to dispose of their waste water violate their rights under the Religious Land Use and Institutionalized Persons Act. (See prior posting.) 

Two Justices filed opinions concurring in the Court's action. Justice Alito in a brief opinion said that the lower court "plainly misinterpreted and misapplied" RLUIPA. Justice Gorsuch, in a longer concurring opinion, said in part:

Perhaps most notably, the County and courts below erred by treating the County’s general interest in sanitation regulations as “compelling” without reference to the specific application of those rules to this community. As Fulton explains, strict scrutiny demands “a more precise analysis.”

Supreme Court Grants Cert. In Maine Case On Tuition Vouchers For Sectarian Schools

The U.S. Supreme Court on Friday granted review in Carson v. Makin, (Docket No. 20-1088, certiorari granted 7/2/2021). (Order List.) 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. 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.

Cert. Denied In Religious Objection To Use of Social Security Number

The U.S. Supreme Court yesterday denied review in Ricks v. Idaho Contractors Board, (Docket No. 19-66, certiorari denied 6/28/2021). (Order List). In the case, an Idaho appeals court dismissed free exercise challenges to the state's requirement that an applicant for a contractor's license furnish his Social Security number.  Federal child support enforcement laws require states to collect Social Security numbers as part of applications for professional licenses if the state wishes to be eligible for certain federal grants.  George Ricks refused to furnish his Social Security number because of his religious belief that Social Security numbers are a form of the Biblical "mark of the beast." (See prior posting.) The Idaho Supreme Court denied a petition for review. Reuters reports on the case and the denial of certiorari, pointing out that the cert. petition asked the Supreme Court to overrule the Smith case.

Supreme Court Denies Review In Transgender School Bathroom Case

With Justices Thomas and Alito dissenting, the U.S. Supreme Court today denied review in Gloucester County School Board v. Grim, (Docket No. 20-1163, certiorari denied 6/28/2021). (Order list.)  In the case, the U.S. 4th Circuit Court of Appeals, in a 2-1 decision, held that a Virginia school board violated the equal protection clause and Title IX in refusing to allow a transgender male to use the boys' school restrooms. CNN reports on the denial of certiorari.

Supreme Court Denies Cert. In Ecclesiastical Abstention Case

The U.S. Supreme Court today denied review in North American Mission Board v. McRaney, (Docket No. 20-1158, certiorari denied 6/28/2021). (Order List.) 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.)

Cert. Filed In "Christian Flag" Case

Yesterday a petition for certiorari (full text) was filed with the U.S. Supreme Court in Shurtleff v. City of Boston. In the case, the U.S. 1st Circuit Court of Appeals upheld Boston's refusal to allow an organization to raise its "Christian flag" on one of the City Hall Plaza flag poles at an event that would also feature short speeches by local clergy. (See prior posting.) Liberty Counsel issued a press release announcing the filing of the petition.