Supreme Court Upholds Part of Indiana Abortion Law; Denies Review On Injunction For Part

The U.S. Supreme Court Monday in Box v. Planned Parenthood of Indiana and Kentucky, (May 28, 2019), handed down a per curiam opinion on a petition for certiorari before briefing on the merits, but with several amicus briefs having been filed, The court upheld Indiana's law prohibiting fetal remains from abortions being disposed of as medical waste. However the Court denied certiorari as to Indiana's law prohibiting sex-, race- or disability selective abortions, leaving in effect the permanent injuinction approved by the 7th Circuit. (Full text of 7th Circuit opinion.) Justice Thomas filed a separate concurring opinion, but wrote at length criticizing the use of abortion for eugenics purposes. Justices Sotomayor and Ginsburg would have denied review on both issues, with Justice Ginsburg writing a short opinion expressing her views. AP reports on the decision.

Certiorari Denied In California Reparative Therapy Ban Challenge

The U.S.Supreme Court today denied review in Pickup v. Newsom, (Docket No. 18-1244, certiorari denied 5/20/2019). (Order List). In the case, the 9th Circuit Court of Appeals upheld the constitutionality of California's ban on state-licensed mental health providers engaging in sexual orientation change efforts with patients under 18. (See prior posting.)

Review Denied In Deportation of Iraqi Christian

The U.S. Supreme Court today denied review in Shabo v. Barr, (Docket No. 18-827, certiorari denied 5/20/2019). (Order List).  In the case, the U.S. 6th Circuit Court of Appeals refused to grant relief under the Convention Against Torture to an Iraqi in the United States who was being deported after serving 5 years in prison for a drug conviction.  Appellant claimed that as a Chaldean Christian he would be subject to torture if he returned to Iraq. National Law Journal reports on the case.

Alito Weighs In Late On Buddhist Inmate's Request For His Spiritual Adviser At His Execution

As previously reported, late on March 28, the U.S. Supreme Court In Murphy v. Collier ruled in favor of Buddhist prisoner Patrick Murphy who wanted his Buddhist spiritual adviser to be present in the execution chamber when his execution was carried out. At that time it was indicated that Justices Thomas and Gorsuch voted against granting the stay. This week, on May 13, Justice Alito filed an opinion (full text) dissenting from the grant of the stay. Justices Thomas and Gorsuch joined the opinion.

In the present case, Murphy cannot overcome the presumption against last-minute applications. As I will explain, see Part III, infra, his religious liberty claims are dependent on the resolution of fact-intensive questions that simply cannot be decided without adequate proceedings and findings at the trial level. Those questions cannot be properly resolved in a matter of hours on a woefully deficient record. But that is precisely what Murphy asked of the lower courts and this Court.

Justice Alito did not explain why he was not listed originally as dissenting from the grant of the stay of execution. He merely said in this week's opinion:

I did not agree with the decision of the Court when it was made. Because inexcusably late stay applications present a recurring and important problem and because religious liberty claims like Murphy’s may come before the Court in future cases, I write now to explain why, in my judgment, the Court’s decision in this case was seriously wrong. 

Justice Kavanaugh, in an opinion joined by Chief Justice Roberts, responded to Justice Alito, saying in part:

Put simply, this Court’s stay facilitated the prompt resolution of a significant religious equality problem with the State’s execution protocol and should alleviate any future litigation delays or disruptions that otherwise might have occurred as a result of the State’s prior discriminatory policy.

Cert. Filed In Challenge To School's Curriculum On the Muslim World

A petition for certiorari (full text) was filed with the U.S. Supreme Court this week in Wood v. Arnold, (cert. filed 5/13/2019).  In the case, the U.S. 4th Circuit Court of Appeals rejected a high school student's Establishment Clause and compelled speech challenges to a classroom unit on The Muslim World.  One challenge was to the teacher's Power Point slide which included the statement that most Muslims' faith is stronger than that of the average Christian.  The other challenge was to the requirement on a work sheet for the student to fill in two words of the shahada. (See prior posting). Thomas More Law Center issued a press release announcing the filing of the petition for review.

Certiorari Denied In Church Trademark Dispute

The U.S. Supreme Court yesterday denied review in Universal Church, Inc. v. Toellner, (Docket No. 18-1159, certiorari denied 4/29/2019).  In the case, the U.S. Second Circuit Court of Appeals rejected a claim that the Universal Life Church had infringed the trademark of the Universal Church.  In Universal Church, Inc. v. Toellner, (2d Cir. Nov. 2, 2018), the court held that the term  "Universal Church" is generic in referring to religious counseling and evangelistic and ministerial services.

Supreme Court Hears Oral Arguments In Title VII Case

Yesterday the U.S. Supreme Court heard oral arguments (transcript of oral arguments) in Fort Bend County, Texas v. Davis. In the case, the 5th Circuit held that the the requirement a person exhaust administrative remedies before bringing a Title VII employment discrimination action is not jurisdictional.  This meant that the county's delay in raising the defense of exhaustion could result in its forfeiting its right to raise the defense. Charlotte Garden at SCOTUSblog reports on the oral arguments.

Certiorari Denied In Priest's Libel Suit Against Diocese

Yesterday the U.S. Supreme Court denied review in Gallagher v. Diocese of Palm Beach, Inc., (Docket No. 18-964, certiorari denied, 4/22/2019) (Order List).  In the case,  a Florida state appellate court held that the ecclesiastical abstention doctrine requires dismissal of a defamation suit brought by a Catholic priest against the diocese in which he served. (See prior posting.) The Florida Supreme Court had denied review in the case.  South Florida Sun Sentinel reports on yesterday's U.S. Supreme Court's denial of certiorari.

Supreme Court Will Decide Whether Title VII Protects Gays and Transgender Individuals

The U.S. Supreme Court today granted review in three cases involving important questions of LGBT rights under Title VII of the 1964 Civil Rights Act.  First the Court granted certiorari in Bostock v. Clayton County, Georgia, (Docket No. 17-1618) (SCOTUSblog Case Page) and consolidated it with Altitude Express, Inc. v. Zarda (Docket No.17-1623) (SCOTUSblog Case Page) (see prior posting) in which it also granted certiorari (Order List 4/22/2019). The cases raise the question of whether Title VII's prohibition on discrimination "because of ... sex" covers discrimination against employees on the basis of sexual orientation.

Second, the Court granted review in R.G. & G.R. Harris Funeral Homes v. EEOC, (Docket No. 18-107, certiorari granted 4/22/2019 (SCOTUSblog Case Page) (See prior posting). The grant of certiorari was specifically on:

Whether Title VII prohibits discrimination against transgender people based on (1) their status as transgender or (2) sex stereotyping under Price Waterhouse v. Hopkins, 490 U. S. 228 (1989).

New York Times reports on the Supreme Court's action.

SCOTUS Hears Arguments On Immoral Trademarks

Yesterday the U.S. Supreme Court heard oral arguments in Iancu v. Brunetti (transcript of oral arguments). At issue is whether Sec. 2(a) of the Lanham Trademark Act that prohibits registration of a trademark that contains "immoral" matter is invalid under the free speech provisions of the 1st Amendment.  Here is the SCOTUSblog case page for the case linking to all the briefs and other pertinent material. Mark Walsh at SCOTUSblog describes the case as an introduction to his entertaining summary of oral arguments:

The first case for argument today involves the highly provocative trademark, “FUCT,” for a line of “streetwear” founded by Erik Brunetti in California in 1990.

Washington Post also reports on the oral arguments.

Following SCOTUS, Texas Says No Chaplains In Execution Chamber

In response to last week's U.S. Supreme Court decision in Murphy v. Collier (see prior posting), the Texas Department of Criminal Justice has changed its execution protocol.  According to UPI, under the new rules only security personnel may be in the execution chamber while an inmate's execution is carried out.  No chaplains are permitted.  Official prison chaplains will be available to inmates until they are taken to the execution chamber.  Any spiritual adviser will be able to observe the execution from the witness room. Justice Kavanaugh's opinion last week indicated that this would be one permissible option to avoid denominational discrimination.

Supreme Court Says Inmate Is Entitled To His Spiritual Adviser In Execution Chamber

Late last night, the U.S. Supreme Court, by a 7-2 vote, ruled in favor of Buddhist prisoner Patrick Murphy who wanted his Buddhist spiritual adviser to be present in the execution chamber when his execution, scheduled for last night, was carried out. A Texas federal district court had upheld the decision of prison authorities to allow only the prison's Christian chaplain to be in the room with Murphy. His Buddhist clergyman could be in the adjacent viewing room. (See prior posting.) In Murphy v. Collier, (Sup. Ct., March 28, 2019), the U.S. Supreme Court held:

The State may not carry out Murphy’s execution pending the timely filing and disposition of a petition for a writ of certiorari unless the State permits Murphy’s Buddhist spiritual advisor or another Buddhist reverend of the State’s choosing to accompany Murphy in the execution chamber during the execution.

Justices Thomas and Gorsuch voted against granting a stay of execution. Justice Kavanaugh filed a concurring opinion, saying in part:

For this kind of claim, there would be at least two possible equal-treatment remedies available to the State going forward: (1) allow all inmates to have a religious adviser of their religion in the execution room; or (2) allow inmates to have a religious adviser, including any state-employed chaplain, only in the viewing room, not the execution room.... [T]here are operational and security issues associated with an execution by lethal injection. Things can go wrong and sometimes do go wrong in executions, as they can go wrong and sometimes do go wrong in medical procedures. States therefore have a strong interest in tightly controlling access to an execution room in order to ensure that the execution occurs without any complications, distractions, or disruptions. The solution to that concern would be to allow religious advisers only into the viewing room.

....What the State may not do, in my view, is allow Christian or Muslim inmates but not Buddhist inmates to have a religious adviser of their religion in the execution room.

The case moved through the Supreme Court rapidly. The district court's decision was handed down on March 26. A petition for a stay was filed and on March 28 Becket filed a 22-page amicus brief with the Supreme Court.  According to Becket, the Supreme Court's decision was handed down two-and-one-half hours after the scheduled start of the execution.

CORRECTION: SG's Views Sought In Title VII Religious Accommodation Case

The U.S. Supreme Court today asked for the Solicitor General to file a brief in Patterson v. Walgreen Co., (Docket No. 18-349, 3/18/2019). (Order List). In the Title VII case, the 11th Circuit held that Walgreens had offered reasonable accommodation for the religious needs of a Seventh Day Adventist employee whose beliefs did not permit him to work on Saturday. (See prior posting.) A prior posting incorrectly reported that cert. had been denied in the case.

Supreme Court Denies Review In B&B's Refusal To Rent To Lesbian Couple

The U.S. Supreme Court today denied review in Aloha Bed & Breakfast v. Cervelli, (Docket No. 18-451, certiorari denied 3/18/2019). (Order List).  In the case, a Hawaii sate appeals court held that a 3-room bed & breakfast violated the state's public accommodation law when the B&B owner refused on religious grounds to accept a room reservation from a lesbian couple. (See prior posting.) The Hawaii Supreme Court denied review. (See prior posting.)

Certiorari Denied In Historic Touro Synagogue Dispute

The U.S. Supreme Court today denied review in Congregation Jeshuat Israel v. Congregation Shearith Israel, (Docket No. 18-530, certiorari denied 3/18/2019). (Order List.) In the case, the U.S. 1st Circuit Court of Appeals held that Rhode Island's historic Touro Synagogue, and a pair of historic silver Torah ornaments worth some $7 million, are owned by New York's Shearith Israel congregation. (See prior posting and denial of en banc review.) Providence Journal reports on the Supreme Court's denial of certiorari.

Cert. Filed In Montana Scholarship Tax Credit Challenge

A petition for certiorari (full text) was filed with the U.S. Supreme Court on March 12 in Espinoza v. Montana Department of Revenue.  In the case the Montana Supreme Court held that Montana's tax credit program for contributions to student scholarship organizations is unconstitutional under Montana Constitution Art. X, Sec, 6 which prohibits state aid to sectarian schools. (See prior posting.)  The petition for review asks the U.S. Supreme Court to decide whether it violates the 1st or 14th Amendments for a state court to invalidate a generally available and religiously neutral student-aid program because the program includes students attending religious schools.  Institute for Justice issued a press release announcing the filing of the cert. petition.

Cert. Filed In Universal Church Trademark Case

A petition for certiorari was filed on March 4 in Universal Church, Inc. v. Toellner. (Full text of petition at 2019 U.S. S. Ct. Briefs LEXIS 831). In the case, the U.S. Second Circuit Court of Appeals rejected a claim that the Universal Life Church had infringed the trademark of the Universal Church.  In Universal Church, Inc. v. Toellner, (2d Cir. Nov. 2, 2018), the court held that the term  "Universal Church" is generic in referring to religious counseling and evangelistic and ministerial services.

SCOTUS Oral Argument Transcript In Bladensburg Cross Case Now Available

The transcript of today's full oral arguments in the Supreme Court in American Legion v. American Humanist Association is now available.

Supreme Court Will Hear Oral Arguments Today In Bladensburg Cross Case

This morning the U.S. Supreme Court will hear oral arguments in American Legion v. American Humanist Association.  In the case, the U.S. 4th Circuit Court of Appeal, in a 2-1 decision, held that the 40-foot high Bladensburg Cross that has stood for over 90 years as a World War I Veterans' Memorial, violates the Establishment Clause. (See prior posting.) The Circuit Court, by a vote of 8-6, then denied en banc review. (See prior posting). Some 47 amicus briefs have been filed in the case. Here is the SCOTUS blog case page for the case, with links to the briefs, other filings and commentary.  I will post the full transcript of today's oral arguments when it becomes available, probably this afternoon.

Supreme Court Review Denied In Nuns' Pipeline Challenge

The U.S. Supreme Court today denied certiorari in Adorers of the Blood of Christ v. Federal Energy Regulatory Commission, (Docket No. 18-548, certiorari denied 2/192019) (Order List).  In the case, the U.S. 3rd Circuit Court of Appeals dismissed on procedural grounds a Religious Freedom Restoration Act challenge to FERC's approval of a pipeline project. The natural gas pipeline at issue runs through land owned by an order of Catholic nuns whose religious beliefs require them to preserve the earth. Developers were authorized to acquire land for the pipeline by eminent domain. (See prior posting.)