Cert. Filed In Funeral Home's Firing of Transgender Employee

A petition for certiorari (full text) was filed with the U.S. Supreme Court last week in R.G. & G.R. Harris Funeral Homes, Inc. v. EEOC, (cert. filed 7/20/2018).  In the case, 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. The court, rejecting the employer's religious freedom defense, held that the employee was illegally fired because of her failure to conform to sex stereotypes. ADF issued a press release announcing the filing of the lawsuit.

Kavanaugh's Judicial Record On Religion Issues

To assist in evaluation of Supreme Court nominee Brett Kavanaugh's church-state and religious liberty views, here are all the D.C. Circuit cases involving these issues in which Kavanaugh was one of the judges deciding the case. Cases designated by an asterisk are ones in which Kavanaugh authored an opinion:

Estate of Coll-Monge v. Inner Peace Movement, 524 F.3d 1341 (2008)

* Chaplaincy of Full Gospel Churches v. United States Navy (In re Navy Chaplaincy), 534 F.3d 756 (2008) [majority opinion]

St. John's United Church of Christ v. FAA, 550 F.3d 1168 (2008)

Kaemmerling v. Lappin, 553 F.3d 669 (2008)

* Newdow v. Roberts, 603 F.3d 1002 (2010)[concurring opinion]

Daniel Chapter One v. FTC, 405 Fed. Appx. 505 (2010)

* Mahoney v. Doe, 642 F.3d 1112 (2011) [concurring opinion]

United States v. Moore, 651 F.3d 30 (2011)

Chaplaincy of Full Gospel Churches v. United States Navy (In re Navy Chaplaincy), 738 F.3d 425 (2013)

In re Charges of Judicial Misconduct, 769 F.3d 762 (2014)

* Priests for Life v. United States HHS, 808 F.3d 1 (2015) [dissenting opinion]

Preliminary Analyses of SCOTUS Nominee Brett Kavanaugh's Religious Liberty Positions

President Trump last night announced that he will nominate D.C. Circuit Judge Brett M. Kavanaugh to Justice Anthony Kennedy's seat on the U.S. Supreme Court.  Last week, National Review ran this analysis of Judge Kavanaugh's record on religious liberty and church-state issues. The Federalist also ran an analysis, more critical of Kavanaugh's record in this regard.

The Washington Post last night ran an article titled: Judge Brett Kavanaugh — a Catholic — faces a historical struggle between canon and constitutional law

Also last week, Daniel Cardinal DiNardo, President of the United States Conference of Catholic Bishops sent a letter (full text) decrying attempts to generate opposition of any Supreme Court nominee based on his or her views on Roe v. Wade. The letter reads in part:

There is no doubt that the Catholic Church stands out for its commitment to the right to life from conception until natural death.  This ethic has profound consequences not only for abortion, but for many other areas of life, including the death penalty, the application of scientific research to human subjects, the right to adequate health care, and the role of the state in promoting the common good.  Our civil society will be all the poorer if Senators, as a matter of practice, reject well-qualified judicial nominees whose consciences have been formed in this ethic.

UPDATE: Americans United has also prepared a report (full text) on Kavanaugh's church-state and religious liberty record. In addition to opinions, the report identifies relevant briefs and a lecture.

Cert. Denied In Michigan Legislative Prayer Case

Last week the U.S. Supreme Court denied certiorari in Bormuth v. Jackson County, Michigan, (Docket No. 17-7220, cert. denied June 28, 2018). (Order List).  In the case, the 6th Circuit sitting en banc in a 9-6 decision upheld the invocation practices of the Jackson County Board of Commissioners.  At issue was whether the Establishment Clause is violated when invocations-- virtually all of them Christian-- are offered by elected Commissioners themselves rather than by a chaplain or invited clergy. (See prior posting.)  The denial of review came on the same day that the Supreme Court (as previously reported) also denied certiorari in a 4th Circuit legislative prayer case-- Rowan County, North Carolina v. Lund which took a contrary view in a similar situation. In the Rowan County case, Justice Thomas, joined by Justice Gorsuch, filed an opinion dissenting from the denial of certiorari, saying in part::

[T]he Sixth and Fourth Circuits are now split on the legality of legislator-led prayer. State and local lawmakers can lead prayers in Tennessee, Kentucky, Ohio, and Michigan, but not in South Carolina, North Carolina, Virginia, Maryland, or West Virginia. This Court should have stepped in to resolve this conflict.

[Thanks to Blog From the Capital for the lead on Bormuth.]

Cert. Denied, Over 2 Dissents, In Legislative Prayer Case

The U.S. Supreme Court yesterday denied review in Rowan County, North Carolina v. Lund, (cert. denied 6/28/2018), but with Justice Thomas, joined by Justice Gorsuch, filing an opinion dissenting from the denial of certiorari. (Full text).  In the case,  the U.S. 4th Circuit Court of Appeals sitting en banc held by a 10-5 vote that the prayer practices of the Rowan County Board of Commissioners, in which commissioners themselves deliver invocations, violate the Establishment Clause. (See prior posting.) Charlotte Observer reports on the denial of certiorari and reactions to it.

Supreme Court Review Sought In Case of Football Coach Prayer

A petition for certiorari (full text) was filed with the U.S. Supreme Court this week in Kennedy v. Bremerton School District, (cert. filed 6/25/2018).  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.)  Christian News reports on the petition for review.

Supreme Court Issued Clean-Up Orders In Other Pregnancy Clinic and Travel Ban Cases

In light of Tuesday's Supreme Court decisions in the travel ban and the pro-life pregnancy center cases, yesterday the Supreme Court issued clean-up orders, remanding for consideration in light of those decisions several similar cases in which petitions for review were pending. (Order List (June 28, 2018)):

In Woman's Friend Clinic v. Becerra (Docket No. 16-1146); Livingwell Medical Clinic v. Becerra (Docket No. 16-1153); Mountain Right to Life v. Beccera  (Docket No. 17-211); the court granted certiorari, vacated 9th Circuit judgments below, and remanded for further consideration in light of National Institute of Family and Life  Advocates v. Becerra.

In International Refugee Assistance v. Trump (Docket No. 17-1194) and Trump v. International Refugee Assistance (Docket No. 17-1270), the Court granted certiorari, vacated 4th Circuit judgments below, and remanded for further consideration in light of Trump v. Hawaii.

Supreme Court Remands Case Involving Officers Ordering Suspect To Cease Praying

In Sause v. Bauer, (US Sup. Ct., June 28, 2018), the U.S. Supreme Court in a 4 page per curiam opinion granted certiorari, reversed the 10th Circuit, and remanded for further proceedings a case in which petitioner claimed that her free exercise rights were infringed when police officers in her apartment in response to a noise complaint ordered her to stop praying. The Court said in part:

There can be no doubt that the First Amendment protects the right to pray. Prayer unquestionably constitutes the “exercise” of religion. At the same time, there are clearly circumstances in which a police officer may lawfully prevent a person from praying at a particular time and place. For example, if an officer places a suspect under arrest and orders the suspect to enter a police vehicle for transportation to jail, the suspect does not have a right to delay that trip by insisting on first engaging in conduct that, at another time, would be protected by the First Amendment. When an officer’s order to stop praying is alleged to have occurred during the course of investigative conduct that implicates Fourth Amendment rights, the First and Fourth Amendment issues may be inextricable.

That is the situation here. As the case comes before us, it is unclear whether the police officers were in petitioner’s apartment at the time in question based on her consent, whether they had some other ground consistent with the Fourth Amendment for entering and remaining there, or whether their entry or continued presence was unlawful.... Without knowing the answers to these questions, it is impossible to analyze petitioner’s free exercise claim.

(See prior related posting.)

Justice Kennedy To Retire

Justice Anthony Kennedy today submitted a letter (full text) to President Trump notifying the President that he plans to move from active status to senior status on the Court as of July 31. A press release from the Supreme Court confirmed Kennedy's intent to retire.

Cert. Filed In Bladensburg Cross Challenge

Yesterday a petition for certiorari (full text) was filed with the U.S. Supreme Court in American Legion v. American Humanist Association. In the case, the U.S. 4th Circuit Court of Appeals in a 2-1 decision held that a 40-foot tall Latin Cross on government property created as a World War I Veterans' Memorial (Bladensburg Cross) violates the Establishment Clause.  (See prior posting.) En banc review was denied by a vote of 8-6. (See prior posting).  First Liberty Institute issued a press release announcing the filing of the cert. petition.

Trump's Travel Ban Upheld By Supreme Court; Establishment Clause Challenge Rejected

This morning in Trump v. Hawaii, (US Sup. Ct., June 26, 2018), the U.S. Supreme Court upheld the latest version of President Trump's travel ban, rejecting Establishment Clause challenges to the ban. Chief Justice Roberts' majority opinion, joined by Justices Kennedy, Thomas, Alito and Gorsuch, said in part:

The case before us differs in numerous respects from the conventional Establishment Clause claim. Unlike the typical suit involving religious displays or school prayer, plaintiffs seek to invalidate a national security directive regulating the entry of aliens abroad. Their claim accordingly raises a number of delicate issues regarding the scope of the constitutional right and the manner of proof. The Proclamation, moreover, is facially neutral toward religion. Plaintiffs therefore ask the Court to probe the sincerity of the stated justifications for the policy by reference to extrinsic statements—many of which were made before the President took the oath of office. These various aspects of plaintiffs’ challenge inform our standard of review....

Nonetheless, although foreign nationals seeking admission have no constitutional right to entry, this Court has engaged in a circumscribed judicial inquiry when the denial of a visa allegedly burdens the constitutional rights of a U. S. citizen....

For our purposes today we assume that we may look behind the face of the Proclamation to the extent of applying rational basis review.... As a result, we may consider plaintiffs’ extrinsic evidence, but will uphold the policy so long as it can reasonably be understood to result from a justification independent of unconstitutional grounds....

The Proclamation is expressly premised on legitimate purposes: preventing entry of nationals who cannot be adequately vetted and inducing other nations to improve their practices. The text says nothing about religion. Plaintiffs and the dissent nonetheless emphasize that five of the seven nations currently included in the Proclamation have Muslim-majority populations. Yet that fact alone does not support an inference of religious hostility, given that the policy covers just 8% of the world’s Muslim population and is limited to countries that were previously designated by Congress or prior administrations as posing national security risks.

The majority also used its opinion to formally reject the long-discredited Korematsu case that in 1944 upheld the internment of Japanese Americans.

Justices Kennedy and Thomas each filed a separate concurring opinion. Justice Breyer filed a dissenting opinion joined by Justice Kagan. Justice Sotomayor filed a dissenting opinion, joined by Justice Ginsburg, saying in part:

The United States of America is a Nation built upon the promise of religious liberty. Our Founders honored that core promise by embedding the principle of religious neutrality in the First Amendment. The Court’s decision today fails to safeguard that fundamental principle. It leaves undisturbed a policy first advertised openly and unequivocally as a “total and complete shutdown of Muslims entering the United States” because the policy now masquerades behind a façade of national-security concerns. But this repackaging does little to cleanse Presidential Proclamation No. 9645 of the appearance of discrimination that the President’s words have created. Based on the evidence in the record, a reasonable observer would conclude that the Proclamation was motivated by anti-Muslim animus. That alone suffices to show that plaintiffs are likely to succeed on the merits of their Establishment Clause claim. The majority holds otherwise by ignoring the facts, misconstruing our legal precedent, and turning a blind eye to the pain and suffering the Proclamation inflicts upon countless families and individuals, many of whom are United States citizens. Because that troubling result runs contrary to the Constitution and our precedent, I dissent. 

Supreme Court Holds California's FACT Act Violates Speech Rights of Pro-Life Clinics

The U.S. Supreme Court this morning, in a victory for pro-life pregnancy centers, decided National Institute of Family and Life Advocates v. Becerra, (US Sup. Ct., June 26, 2018).  At issue was California's FACT Act which requires licensed pregnancy counseling clinics to post and distribute a notice on the existence of publicly-funded family planning services, including contraception and abortion.  Unlicensed clinics must disseminate a notice that they and their personnel are unlicensed.  Justice Thomas, writing for the majority (Thomas, Roberts, Kennedy, Alito, Gorsuch) held that these disclosure requirements likely violate 1st Amendment free speech rights of the clinics. The Court concluded that the disclosures required of licensed clinics are content-based regulations:

... licensed clinics must provide a government-drafted script about the availability of state-sponsored services, as well as contact information for how to obtain them. One of those services is abortion—the very practice that petitioners are devoted to opposing. By requiring petitioners to inform women how they can obtain state-subsidized abortions—at the same time petitioners try to dissuade women from choosing that option— the licensed notice plainly “alters the content” of petitioners’ speech.

The majority then went on to largely reject the 9th Circuit's conclusion that  strict scrutiny does not apply because the regulation deals with "professional speech," saying in part:

... this Court has not recognized “professional speech” as a separate category of speech. Speech is not unprotected merely because it is uttered by “professionals.”...

This Court has afforded less protection for professional speech in two circumstances—neither of which turned on the fact that professionals were speaking. First, our precedents have applied more deferential review to some laws that require professionals to disclose factual, noncontroversial information in their “commercial speech.” ... Second, under our precedents, States may regulate professional conduct, even though that conduct incidentally involves speech.... But neither line of precedents is implicated here....

As with other kinds of speech, regulating the content of professionals’ speech “pose[s] the inherent risk that the Government seeks not to advance a legitimate regulatory goal, but to suppress unpopular ideas or information.”

Turning to the required disclosures for unlicensed centers, the Court said in part:

California has not demonstrated any justification for the unlicensed notice that is more than “purely hypothetical.”

A concurring opinion by Justice Kennedy, joined by Chief Justice Roberts and Justices Alito and Gorsuch emphasizes a viewpoint discrimination argument, saying in part:

... here the State requires primarily pro-life pregnancy centers to promote the State’s own preferred message advertising abortions. This compels individuals to contradict their most deeply held beliefs, beliefs grounded in basic philosophical, ethical, or religious precepts, or all of these.

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

Because much, perhaps most, human behavior takes place through speech and because much, perhaps most, law regulates that speech in terms of its content, the majority’s approach at the least threatens considerable litigation over the constitutional validity of much, perhaps most, government regulation....

If a State can lawfully require a doctor to tell a woman seeking an abortion about adoption services, why should it not be able, as here, to require a medical counselor to tell a woman seeking prenatal care or other reproductive healthcare about childbirth and abortion services?

Supreme Court Vacates and Remands Arlene's Flowers Case

The U.S. Supreme Court today in Arlene's Flowers, Inc. v. Washington, (Docket No. 17-108, vacated 6/25/2018), (Order List), granted certiorari, vacated the judgment below and remanded the case to the Washington Supreme Court in light of  Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm'n.  In the Arlene's Flowers case, the state of Washington's Supreme Court had upheld a trial court's decision that a florist's religiously-motivated refusal to sell arranged flowers for a same-sex wedding violates the Washington Law Against Discrimination. (See prior posting).

Supreme Court Denies Review In Two Church Property Cases

Today the U.S. Supreme Court denied review in two unrelated cases involving disputes over church property after the break away of a congregation from its parent body..  It denied certiorari in Presbytery of the Twin Cities Area v. Eden Prairie Presbyterian Church, Inc., (Docket No. 17-582, cert. denied 6/11/2018) (Order List).  In the case, the Minnesota Court of Appeals held that it was proper to apply the "neutral principles of law" approach, rather than applying the ecclesiastical abstention doctrine, to decide ownership of property of a congregation which had disaffiliated from the Presbyterian Church USA. (See prior posting).

The court also denied certiorari in Protestant Episcopal Church in the Diocese of South Carolina v. The Episcopal Church, (Docket No. 17-1136, cert. denied 6/11/2018) (Order List).  In the case, the 5-member South Carolina Supreme Court in 5 separate opinions resolved a property dispute that arose after a split in the Episcopal Church in South Carolina. (See prior posting.)

Supreme Court In Narrow Decision Reverses Order Against Wedding Cake Baker

Today, by a vote of 7-2, the U.S. Supreme Court in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, (Sup. Ct., June 4, 2018), reversed on narrow grounds a Colorado appellate court's decision upholding the state Civil Rights Commission's cease and desist order against a baker who refused on religious grounds to create a wedding cake for a same-sex couple.  The Supreme Court's majority decision, written by Justice Kennedy, focused on what was seen as the unfairness of the hearing provided to the baker by the Commission, and the difference between this case and the approach in others decided by the Commission:

The Court’s precedents make clear that the baker, in his capacity as the owner of a business serving the public, might have his right to the free exercise of religion limited by generally applicable laws. Still, the delicate question of when the free exercise of his religion must yield to an otherwise valid exercise of state power needed to be determined in an adjudication in which religious hostility on the part of the State itself would not be a factor in the balance the State sought to reach. That requirement, however, was not met here. When the Colorado Civil Rights Commission considered this case, it did not do so with the religious neutrality that the Constitution requires.

In reaching that conclusion, the Court acknowledged the difficulties involved in deciding the broader issues posed by the case:

The free speech aspect of this case is difficult, for few persons who have seen a beautiful wedding cake might have thought of its creation as an exercise of protected speech. This is an instructive example, however, of the proposition that the application of constitutional freedoms in new contexts can deepen our understanding of their meaning.

One of the difficulties in this case is that the parties disagree as to the extent of the baker’s refusal to provide service. If a baker refused to design a special cake with words or images celebrating the marriage—for instance, a cake showing words with religious meaning—that might be different from a refusal to sell any cake at all.... 

The same difficulties arise in determining whether a baker has a valid free exercise claim. A baker’s refusal to attend the wedding to ensure that the cake is cut the right way, or a refusal to put certain religious words or decorations on the cake, or even a refusal to sell a cake that has been baked for the public generally but includes certain religious words or symbols on it are just three examples of  possibilities that seem all but endless.

Justice Kagan filed a concurring opinion joined by Justice Breyer.  Justice Gorsuch filed a concurring opinion joined by Justice Alito.  Justice Thomas filed a opinion concurring in part, joined by Justice Gorsuch.

Justice Ginsburg, joined by Justice Sotomayor, filed a dissenting opinion arguing that there was not sufficient evidence of unfair hostility by the Commission to the baker's religious beliefs.

Politico reports on the decision, as does SCOTUSblog.

Certiorari Denied In Christian School's RLUIPA Lawsuit

The U.S. Supreme Court today denied review in Livingston Christian Schools v. Genoa Charter Township, (Docket No. 17-914, certiorari denied 4/30/2018) (Order List).  In the case, the U.S. 6th Circuit Court of Appeals dismissed a RLUIPA claim by a Christian school that was denied a special use permit needed for it to relocate. The school had concluded that remaining in its present location on a long-term basis would end in its dissolution from lack of enrollment and income.  However the Court held as a matter of law that the denial of the permit did not impose a "substantial burden" on the school. (See prior posting.)

Transcript and Audio of Arguments in Trump v. Hawaii Now Available

The full transcript and full audio recordings of today's oral arguments before the Supreme Court in Trump v. Hawaii are now available. At issue is the legality of the third version of President Trump's ban on travel to the U.S. by nationals of several countries.  Washington Post, reporting on the arguments, said that the conservative majority on the Court appeared to agree that the President has authority to issue the ban.

Supreme Court Will Hear Oral Arguments In Travel Ban Case Today

The U.S. Supreme Court will hear oral arguments this morning in Trump v. Hawaii, a challenge to the legality of the most recent version of President Trump's controversial "travel ban."  As explained by this argument preview from SCOTUSblog, as well as this New York Times preview, one of the major questions that the Court will face is whether Donald Trump's anti-Muslim statements  during his campaign for office, and his Tweets while in office, should be considered in deciding whether his later executive action violates the Establishment Clause. SCOTUS blog's case page has links to the numerous briefs filed in the case, as well as to commentary and other primary source documents.  I will post a link to the transcript of the oral argument when it becomes available later today.

Supreme Court: Foreign Corporations Cannot Be ATS Defendants

The U.S. Supreme Court today on Jesner v. Arab Bank, (Sup. Ct., April 24, 2018), by a vote of 5-4, held that foreign corporations may not be defendants in suits under the Alien Tort Statute.  In the suit, plaintiffs claimed that terrorist attacks abroad had been facilitated by defendant, Arab Bank.  The portion of Justice Kennedy's opinion that commanded the vote of 5 justices said in part:

The ATS was intended to promote harmony in international relations by ensuring foreign plaintiffs a remedy for international-law violations in circumstances where the absence of such a remedy might provoke foreign nations to hold the United States accountable.... But here, and in similar cases, the opposite is occurring. Petitioners are foreign nationals seeking hundreds of millions of dollars in damages from a major Jordanian financial institution for injuries suffered in attacks by foreign terrorists in the Middle East. The only alleged connections to the United States are the CHIPS transactions in Arab Bank’s New York branch and a brief allegation regarding a charity in Texas.

Justices Thomas, Alito and Gorsuch each filed a concurring opinion.  Justice Sotomayor filed a dissenting opinion, joined by Justices Ginsburg, Breyer and Kagan.  Law.com reports on the decision.

Cert. Denied In Abortion Protester's Case

Last Monday, the U.S. Supreme Court denied review in March v. Mills, (Docket No.17-689, cert. denied 4/16/2018) (Order List).  In the case, the U.S. 1st Circuit Court of Appeals upheld a provision of the Maine Civil Rights Act that prohibits a person making noise that can be heard within a health care facility where the intent is to jeopardize health or interfere with the delivery of health services.  The appeals court rejected a constitutional challenge brought by an abortion protester who is the pastor and co-founder of a church whose mission was described as including "plead[ing] for the lives of the unborn at the doorsteps of abortion facilities." (See prior posting.)  AP reported on the Supreme Court's denial of certiorari. [Thanks to Tom Rutledge for the lead.]