Cert. Denied In Attempt To Subpoena Bishops' Documents

The U.S. Supreme Court today denied review in Whole Woman's Health v. Texas Catholic Conference of Bishops, (Docket No. 18-622, certiorari denied 2/19/2019) (Order List).  In the case, the U.S. 5th Circuit Court of Appeals, in a 2-1 decision, held that a Texas federal district court should have quashed a document discovery order in a case in which several health care providers challenged the state's fetal remains regulations. (See prior posting). While discussing the Bishops' constitutional claim that internal deliberations of religious organizations should be protected, the 5th Circuit ultimately relied on  Federal Rules of Civil Procedure 45(d) which calls for quashing a subpoena when it imposes an undue burden. Becket issued a press release discussing the Supreme Court's denial of certiorari.

Supreme Court Keeps Injunction Against Louisiana Abortion Law In Effect

In June Medical Services, L.L.C. v. Gee, (US Sup. Ct. Feb. 7, 2019), a case involving Louisiana's new abortion law, the U.S. Supreme Court by a 5-4 vote prevented the law from going into effect pending the filing of a petition for certiorari.  A 5th Circuit Court of Appeals decision  had stayed a district court's injunction against the law.  Now the Supreme Court has stayed the 5th Circuit's action. At issue is a facial challenge to Louisiana's law that requires doctors at abortion clinics to have admitting privileges at nearby hospitals.  Challengers had argued that this would leave only one abortion clinic operating in the state.  In allowing the law to go into effect, the 5th Circuit questioned that conclusion.  In the Supreme Court, Justices Thomas, Alito, Gorsuch and Kavanaugh would have denied the application so that the law could take effect.  Justice Gorsuch, writing only for himself, filed an opinion saying that:

I would deny the stay without prejudice to the plaintiffs’ ability to bring a later as-applied complaint and motion for preliminary injunction at the conclusion of the 45-day regulatory transition period if the Fifth Circuit’s factual prediction about the doctors’ ability to obtain admitting privileges proves to be inaccurate.

NBC News reports on the decision.

Supreme Court Vacates Execution Stay of Muslim Inmate Who Wanted Imam At His Side

By a 5-4 vote, the U.S. Supreme Court yesterday vacated the the stay of execution that had been granted the day before by the U.S. 11th Circuit Court of Appeals to a Muslim inmate who wanted to have his Imam present in the execution chamber when he was executed by lethal injection. (See prior posting.) In Dunn v. Ray, (US Sup. Ct., Feb. 7, 2019), the majority said it was granting the state's application because the inmate had waited until ten days before his Feb. 7 execution date to seek relief.  Justice Kagan, joined by Justices Ginsburg, Breyer and Sotomayor dissented, saying in part:

Here, Ray has put forward a powerful claim that his religious rights will be violated at the moment the State puts him to death. The Eleventh Circuit wanted to hear that claim in full. Instead, this Court short-circuits that ordinary process—and itself rejects the claim with little briefing and no argument—just so the State can meet its preferred execution date.

Pro Publica has a lengthy report on Domineque Ray and his murder trial.

Cert. Denied In Religious Autonomy Case

The U.S. Supreme Court yesterday denied certiorari in First Presbyterian Church U.S.A. of Tulsa, Oklahoma v. Doe, (Docket No. 18-599, cert. denied 1/22/2019). (Order List).  In the case, which raises 1st Amendment religious autonomy issues, the Oklahoma Supreme Court reversed a trial court's dismissal of a suit by a convert to Christianity who was kidnapped and tortured by Islamic extremists in Syria after his baptism was published online.  (See prior posting.)

Cert. Denied In Football Coach's Firing For On-Field Prayer

Today, the U.S. Supreme Court denied certiorari in Kennedy v. Bremerton School District, (Docket No. 18-12, cert. denied 1/22/19).  In the case, the 9th Circuit affirmed the district court's denial of a preliminary injunction sought by a Washington-state high school football coach who in a challenge to his school district was suspended for kneeling and praying on the football field 50-yard line immediately after games. (See prior posting.)  In today's action, Justice Alito, joined by Justices Thomas, Gorsuch and Kavanaugh, filed a 6-page concurring statement (scroll to end of Order List), saying in part:

In this case, important unresolved factual questions would make it very difficult if not impossible at this stage to decide the free speech question that the petition asks us to review....

While I thus concur in the denial of the present petition, the Ninth Circuit’s understanding of the free speech rights of public school teachers is troubling and may justify review in the future....

What is perhaps most troubling about the Ninth Circuit’s opinion is language that can be understood to mean that a coach’s duty to serve as a good role model requires the coach to refrain from any manifestation of religious faith—even when the coach is plainly not on duty.....

While the petition now before us is based solely on the Free Speech Clause of the First Amendment, petitioner still has live claims under the Free Exercise Clause of the First Amendment and Title VII of the Civil Rights Act of 1964.... Petitioner’s decision to rely primarily on his free speech claims as opposed to these alternative claims may be due to certain decisions of this Court.

In Employment Div., Dept. of Human Resources of Ore. v. Smith ... the Court drastically cut back on the protection provided by the Free Exercise Clause, and in Trans World Airlines, Inc. v. Hardison ... the Court opined that Title VII’s prohibition of discrimination on the basis of religion does not require an employer to make any accommodation that imposes more than a de minimis burden. In this case, however, we have not been asked to revisit those decisions.

MyNorthwest reports on the decision.

Supreme Court Will Not Stay Injunction Against Asylum Rule

Today the U.S. Supreme Court issued an order (full text) in East Bay Sanctuary Covenant v. Trump (stay denied, Dec. 21, 2018), denying a stay of a preliminary injunction against implementation of a Presidential Proclamation and a rule that allow asylum to be granted only to refugees who cross the border at a designated port of entry. (See prior posting). Justices Thomas, Alito, Gorsuch and Kavanaugh dissented from the denial of the stay.

DOJ Seeks Early Supreme Court Review of Transgender Military Policy

As reported by SCOTUblog, the Justice Department has filed petitions for certioriari in three cases in which district courts have enjoined implementation of the Trump Administration's new policy on transgender individuals serving in the military.  The petitions in all three cases, Trump v. Karnoski, Trump v. Doe, and Trump v. Stockman, were filed before Circuit Courts of Appeal handed down decisions in the cases-- an unusual procedural step.  The Trump Administration policy-- unlike the policy adopted by the Obama Administration-- precludes most new enlistments by transgender individuals. (See prior posting.) The cert. petitions argue for the immediate granting of review:

Absent an immediate grant of certiorari, there is ... little chance of a prompt resolution of the validity of Secretary Mattis’s proposed policy. And so long as this or any other injunction remains in place, the military will be forced nationwide to maintain the Carter policy—a policy that the military has concluded poses a threat to “readiness, good order and discipline, sound leadership, and unit cohesion,” which “are essential to military effectiveness and lethality.”

Supreme Court Denies Cert. In Ministerial Exception Case

The U.S. Supreme Court today denied review in Grusgott v. Milwaukee Jewish Day School, Inc., (Docket No. 18-125, certiorari denied 11/5/2018). (Order List.)  In the case, the U.S. 7th Circuit Court of Appeals held that the ministerial exception applies to prevent a former Hebrew teacher in a Jewish day school from suing for her firing in violation of the Americans With Disabilities Act. (See prior posting.)

Supreme Court Agrees To Review Bladensburg Cross Case

The U.S. Supreme Court yesterday granted certiorari in two appeals stemming from the same 4th Circuit opinion. The petitions for review were granted in American Legion v. American Humanist Association (Docket No. 17-1717) and Maryland-National Capital Park and Planning Commission v. American Humanist Association (Docket No.  18-18). (Cert. granted, 11/2/2018). (Order List). 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). Here is the SCOTUS blog case page for the cases, with links to filings in the case.  WTOP News reports on the grant of review.

Cert. Filed In Touro Synagogue Ownership Dispute

Last week a petition for certiorari (full text) was filed with the U.S. Supreme Court in Congregation Jeshuat Israel v. Congregations Shearith Israel, (cert. filed 10/22/2018). In the case, the U.S. 1st Circuit Court of Appeals held that Rhode Island's historic Touro Synagogue is owned by New York's Shearith Israel congregation. The court also concluded that a pair of historic silver Torah ornaments worth some $7 million are also owned by the New York congregation. (See prior posting.) Providence Journal reports on the petition for review.

Government Brief To SCOTUS Says Title VII Does Not Ban Transgender Discrimination

On Wednesday, the Justice Department filed a brief (full text) with the U.S. Supreme Court arguing that Title VII of the 1964 Civil Rights Act does not cover discrimination against an individual based on gender identity. The brief follows the position taken by the Trump Administration in an Oct. 2017 Justice Department Memo.  The brief was filed in response to the petition for certiorari in R.G. and G.R. Harris Funeral Homes, Inc. v. EEOC, in which the U.S. 6th Circuit Court of Appeals held that a Michigan funeral home violated Title VII when it fired a transgender employee who was in the process of transitioning from male to female. (See prior posting.) The government's brief ultimately urges the court to hold the petition in this case pending its decision on whether to grant review in two other cases raising similar issues. NBC News reports on the DOJ brief. SCOTUS blog has links to all the briefs filed with the Supreme Court in the case.

Supreme Court Review Sought In Indiana Abortion Restrictions Case

On Oct. 12, a petition for certiorari (full text) was filed with the U.S. Supreme Court in Commissioner of the Indiana State Department of Health v. Planned Parenthood of Indiana and Kentucky, Inc., (cert. filed, Oct. 12, 2018).  The petition presents two questions for the Court's review:

1. Whether a State may require health care facilities to dispose of fetal remains in the same manner as other human remains, i.e., by burial or cremation.

2. Whether a State may prohibit abortions motivated solely by the race, sex, or disability of the fetus and require abortion doctors to inform patients of the prohibition.

The 7th Circuit in an opinion (full text) in April held the provisions of Indiana's abortion laws unconstitutional. Rewire News reports on the petition for review.

Cert. Filed By Catholic Order Objecting To Pipeline Approval

Last Friday, a petition for certiorari (full text) was filed with the U.S. Supreme Court in Adorers of the Blood of Christ v. Federal Energy Regulatory Commission, (cert. filed 10.19/2018).  In the case, the U.S. 3rd Circuit Court of Appeals affirmed the dismissal of a challenge under the Religious Freedom Restoration Act to FERC's approval of a pipeline project. The natural gas pipeline 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. Adorers of the Blood of Christ issued a press release announcing the filing of the petition for review.

Cert. Filed In Oregon Wedding Cake Case

A petition for certiorari (full text) was filed yesterday with the U.S. Supreme Court in Klein v. Oregon Bureau of Labor and Industries, (cert. filed 10/22/2018). In the case, the Oregon Court of Appeals agreed with the state Bureau of Labor and Industries that Sweetcakes bakery violated the state's public accommodation law when it refused to design and create a wedding cake for a same-sex wedding. First Liberty issued a press release announcing the filing of the petition for review.

Certiorari Denied In Suit Against Palestinian Authority for Shooting of Jewish Worshipers In West Bank

The U.S. Supreme Court today denied review in Livnat v. Palestinian Authority, (Docket No. 17-508, certiorari denied 10/15/2018). (Order List). In the case the D.C. Circuit Court of Appeals held (full text of decision) that the the 5th Amendment's due process clause precludes U.S. courts from asserting jurisdiction in a suit by the families of Jewish worshipers who were shot in the West Bank territories of Israel by Palestinian Authority armed guards at the holy site of Joseph’s Tomb.

Cert Filed In Case Testing Limits of Trinity Lutheran Case

A petition for certiorari (full text) was filed on Tuesday with the U.S. Supreme Court in Morris County Board of Chosen Freeholders v. Freedom From Religion Foundation.  In the case, the New Jersey Supreme Court held that historic preservation grants to 12 churches (totaling $4.6 million) violate the Religious Aid Clause of the New Jersey Constitution.  The Court went on to hold that this interpretation does not violate the Free Exercise Clause of the U.S. Constitution. The petition for review frames the issues in the case as follows:

1. Whether using generally available historic preservation funds to repair or restore a house of worship constitutes a “religious use” that falls outside the scope of Trinity Lutheran [v. Comer].

2. Whether the categorical exclusion of all active houses of worship from historic preservation grants violates Trinity Lutheran and the First Amendment as an exclusion based on religious status.

Becket issued a press release announcing the filing of the cert. petition.

Cert. Petition Filed In Case On Cross In Public Park

A petition for certiorari was filed with the U.S. Supreme Court yesterday in City of Pensacola, Florida v. Kondrat'yev. In the case a 3-judge panel of the 11th Circuit Court of Appeals, feeling bound by prior 11th Circuit and Supreme Court precedent, affirmed a Florida district court's Establishment Clause decision ordering Pensacola to remove a 34-foot Latin cross from a public park. (See prior posting). Becket issued a press release announcing the filing of the petition for review.

Supreme Court Refuses Emergency Injunction In Catholic Social Services Foster Care Case

In a one-sentence order yesterday, the U.S. Supreme Court refused to grant an emergency injunction in Fulton v. Philadelphia.  In the case, a Pennsylvania federal district court rejected Catholic Social Services challenges to Philadelphia' requirement that it not discriminate against same-sex couples in foster care placement. Catholic Social Services wanted the Supreme Court to allow it to continue foster care placements while it appealed the city's intake freeze to the 3rd Circuit. Justices Thomas, Alito and Gorsuch would have granted the injunction. SCOTUSblog reports on the court's action

Amicus Briefs Filed With SCOTUS In Case of Funeral Home's Firing of Transgender Employee

Several amicus briefs have been filed with the U.S. Supreme Court urging the Court to grant certiorari in R.G. & G.R. Harris Funeral Homes Inc. v. EEOC. Links to the briefs are available at SCOTUSblog.  In the case, the U.S. 6th Circuit Court of Appeals, rejecting the employer's religious freedom defense, held that a Michigan funeral home violated Title VII when it fired a transgender employee. (See prior posting.) Townhall has more on these developments.

Amicus Briefs In Bladensburg Cross Cert Petitions Now Available

Links (via SCOTUS blog) are now available to the numerous amicus briefs (as well as briefs of the parties) in the certiorari petition in Maryland-National Capital Park and Planning Commission v. American Humanist Association.  In the case, the 4th Circuit, 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). Links are also available to the largely overlapping set of briefs in the related cert. petition in American Legion v. American Humanist Association.