Jockeying In Travel Ban Litigation Continues In Supreme Court

As previously reported, last week the U.S. 9th Circuit Court of Appeals in State of Hawaii v. Trump affirmed a district court's decision on the scope of President Trump's second travel ban executive order.  The decision essentially found that the executive branch had read an earlier order by the Supreme Court too narrowly both as to the travelers and refugees who could be excluded under the travel ban pending a Supreme Court decision on the merits. In a filing on Sept. 11, the government asked Justice Kennedy, the Circuit Justice for the 9th Circuit, to stay the portion of the 9th Circuit's mandate dealing with refugees who are still covered by the travel ban. The next day, Justice Kennedy issued an order temporarily staying that portion of the 9th Circuit's mandate. Today, the state of Hawaii filed its response, arguing in part:

The Government has returned to this Court, for the third time, to ask that it superintend the application of the injunction in this case. The first time the Government was here ... this Court set forth the legal standard that governs the injunction of Executive Order 13,780 ...: Any foreign national with a “bona fide relationship” with a U.S. entity—that is, a relationship that is “formal, documented, and formed in the ordinary course”—is protected from EO-2’s travel and refugee bans.... The second time, on July 19, 2017, the Court denied the Government’s request to “clarify” that the injunction does not apply to refugees who have received a formal assurance from a refugee resettlement agency, instead directing the Ninth Circuit to resolve the question....

The Ninth Circuit faithfully applied both of those directives. It determined ... that a refugee has a “bona fide” relationship with a resettlement agency that signs a formal, written assurance to provide for her housing, food, and other essentials of life. And the Ninth Circuit rejected the Government’s invitation to treat this Court’s July 19, 2017 stay as the merits decision the Court had declined to issue; instead, it performed the diligent analysis that is expected of an appellate court.

SCOTUSblog reports on developments.

UPDATE: On Sept. 12, the U.S. Supreme Court issued an order (full text) staying the 9th Circuit's mandate as it applies to refugees covered by a formal assurance of placement from a resettlement agency.  Refugees from countries covered by the travel ban whose only connection to the United States is such an assurance of placement will be able to be excluded, at least until the Supreme Court decides on the validity of the travel ban on the merits this term.

DOJ Supports Christian Baker In Amicus Brief Filed With Supreme Court

In an amicus brief filed in the U.S. Supreme Court on Sept. 7 in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, the U.S. Department of Justice sided with the Christian bakery owner who refused to design and create a cake for a same-sex wedding.  The brief (full text) argues:

Heightened scrutiny is appropriate at least where a law both compels the creation, for a particular person or entity, of speech or of a product or performance that is inherently communicative, and compels the creator’s participation in a ceremony or other expressive event....

Public accommodations laws compel expression— whether speech or expressive conduct— when they mandate the creation of commissioned goods or the provision of commissioned services that are inherently communicative. That situation might arise if a public accommodations law were applied to painters, photographers, poets, actors, musicians, or other professional artists. Assuming that those artists offer their creative services to the public, a State might attempt to bar a painter who agrees to paint a custom portrait of an opposite-sex couple at their wedding from declining to paint a same-sex couple, or vice versa. Or it might attempt to bar a freelance graphic designer who agrees to design fliers for the upcoming meetings of a Jewish affinity group from declining to do so for a neo-Nazi group or the Westboro Baptist Church. So long as the artist offers to produce expression for a fee, a public accommodations law might purport to restrict her ability to determine which art she will create and for whom....

A public accommodations law exacts a greater First Amendment toll if it also compels participation in a ceremony or other expressive event. That participation may be literal, as in the case of a wedding photographer who attends and is actively involved with the wedding itself. Or that participation may be figurative, as when a person designs and crafts a custom-made wedding ring that performs an important expressive function in the ceremony. Either way, such forced participation intensifies the degree of governmental intrusion.

Some 15 other amicus briefs in support of petitioner have also been filed. Links to them are available on SCOTUSblog's case page.  The due date for amicus briefs in support of respondent has not yet arrived. Christian News reports on the filing of the amicus brief.

Cert. Petition Filed In School Board Prayer Case

A petition for certiorari (full text) was filed with the U.S. Supreme Court today in American Humanist Association v. Birdville Independent School District, (filed 7/31/2017).  In the case (sub. nom. American Humanist Association v. McCarty) the U.S. 5th Circuit Court of Appeals upheld a school board's practice of opening its meetings with presentations from students, which often involve a prayer.  The 5th Circuit held that this should be covered by the legislative prayer cases, not the decisions regarding school prayer. (See prior posting.)  the American Humanist Association issued a press release announcing the filing of the petition for review.

Supreme Court Rules Again On Scope of Travel Ban During Appeal

Once again the Supreme Court has found a complicated middle path in the ongoing challenge to President Trump's second Travel Ban Executive Order.  As previously reported, a Hawaii federal district court held that the government too narrowly interpreted the Supreme Court's temporary order that precludes while appeal is pending, enforcement of the ban against foreign nationals who have a bona fide relationship with a person or entity in the United States.  The government asked the Supreme Court to clarify the matter.  Today in Trump v. Hawaii, (Sup. Ct., July 19, 2017), after receiving briefs on the matter, the Supreme Court refused to stay the portion of the district court's order that allows in otherwise banned foreign nationals from 6 Muslim-majority countries if the travelers have grandparents, grandchildren, brothers-in-law, sisters-in-law, aunts, uncles, nieces, nephews, or cousins in the United States. The Supreme Court however suspended, while the government's appeal to the 9th Circuit is pending, the portion of the district court's order that would have allowed entry of refugees who have assurances of placement from a resettlement agency, as well as those entering under the Lautenberg Program.  Justices Thomas, Alito and Gorsuch said they would have stayed the entire district court order.  SCOTUSblog reports on the Supreme Court's action.

SCOTUS Review Sought In Florist's Refusal To Sell For Same-Sex Wedding

A petition for certiorari (full text) has been filed with the U.S. Supreme Court in Arlene's Flowers, Inc. v. State of Washington, (cert. filed, 7/14/2017).  In the case, the state of Washington's Supreme Court held 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.) The petition for review asks the U.S. Supreme Court to combine this case with the Masterpiece Cake Shop case in which it has already granted review (see prior posting), or to at least hold this case until it decides Masterpiece Cake Shop. Tri-City Herald reports on the cert. petition.

District Court Broadens Those Still Allowed Entry Under Trump's Travel Ban [UPDATED]

In State of Hawai'i v. Trump, (D HI, July 13, 2017), a Hawaii federal district court held that the government has too narrowly interpreted the U.S. Supreme Court's order that precludes enforcement of President Trump's second travel ban executive order against foreign nationals who have a bona fide relationship with a person or entity in the United States.  The district court held that qualifying close familial relationships include grandparents, grandchildren, brothers-in-law, sisters-in-law, aunts, uncles, nieces, nephews, and cousins of persons in the United States.  It also held that a refugee seeking entry has a bona fide relationship with a U.S. entity when a resettlement agency has given the refugee assurance that it will provide, or arrange for, reception and placement services to that refugee.  A similar relationship exists for those in the Lautenberg Program for refugee admissions. New York Times reports on the decision.

UPDATE:  As reported by SCOTUSblog, on July 14, the Trump Administration asked the Supreme Court to clarify that the district court's decision is an incorrect interpretation of the Supreme Court's order.  The Supreme Court ordered plaintiffs in the case to file a response to the government's motion for clarification by noon on July 18.

Cert. Petition Filed In Ten Commandments Case

A petition for certiorari (full text) was filed yesterday with the U.S. Supreme Court in City of Bloomfield v. Felix.  In the case, a 3-judge panel of the 10th Circuit found that a Ten Commandments monument on a city hall lawn violates the Establishment Clause. (See prior posting.) The full 10th Circuit, over the dissent of two judges, denied en banc review.  (See prior posting.)  ADF issued a press release announcing the petition seeking Supreme Court review.

Supreme Court Remands School Aid Cases For Reconsideration In Light of Trinity Lutheran Decision

The U.S. Supreme Court yesterday, in light of its decision this week in Trinity Lutheran Church of Columbia, Inc. v. Comer, sent back to the lower courts for reconsideration school aid cases from Colorado and New Mexico.  All the cases remanded involved reliance on state Blaine amendments to invalidate aid to religious schools.  In three consolidated cases from Colorado, the Court granted certiorari, vacated the judgments below, and remanded to the Supreme Court of Colorado for further consideration. The Colorado cases are Doyle v. Taxpayers for Public Education, (Docket No. 15-556), Douglas City School District v. Taxpayers for Public Education,  (Docket No. 15-557), and Colorado State Board of Education v. Taxpayers for Public Education, (Docket No. 15-558). (June 27, 2017 Order List).  In the cases, the Colorado Supreme Court struck down Douglas County's elaborate Choice Scholarship Pilot Program. (See prior posting.)

In New Mexico Association of Nonpublic Schools v. Moses, (Docket No. 15-1409), the Supreme Court also granted certiorari, vacated the judgment and remanded to the Supreme Court of New Mexico for further consideration. In the case, the New Mexico Supreme Court struck down a New Mexico statute that allows the state to lend secular textbooks to private and parochial school students. (See prior posting.)

Supreme Court: Same-Sex Spouses Must Get Equal Treatment In Birth Certificates

In Pavan v. Smith, (Sup. Ct., June 26, 2017), the U.S. Supreme Court today granted certiorari and summarily (i.e. without further briefing or oral argument) reversed a decision of the Arkansas Supreme Court on the rights of same-sex married couples. The Supreme Court held that "Obergefell’s commitment to provide same-sex couples 'the constellation of benefits that the States have linked to marriage'" means that the state must apply the same rules to same-sex and opposite-sex married couples in the issuance of birth certificates. Under Arkansas law, the male spouse of a woman who gives birth appeared on a birth certificate, but the female spouse of a woman who gives birth did not.  The Supreme Court struck this differentiation down, saying that in Arkansas birth certificates are more than just a marker of biological parentage.

Justice Gorsuch, in an opinion joined by Justices Thomas and Alito, dissented saying that this is an inappropriate case for summary reversal.

Supreme Court Holds Denial of Playground Resurfacing Grant To Church Violates Free Exercise Clause [UPDATED]

In a 7-2 decision in Trinity Lutheran Church of Columbia, Inc. v. Comer, (Sup. Ct., June 26, 2017), the U.S. Supreme Court today held that the First Amendment free exercise rights of Trinity Lutheran Church were violated when the state of Missouri denied the church's Child Learning Center a grant for resurfacing of its playground with scrap tire material.  The state had relied on Missouri Constitution's Blaine Amendment which prohibits financial assistance directly to any church.

Chief Justice Roberts delivered the opinion of the court which was joined in full by Justices Kennedy, Alito and Kagan.  Justices Thomas and Gorsuch joined Roberts' opinion except for a footnote that attempted to limit the holding to the facts of this case. In his opinion for the Court, Roberts said in part:

In recent years, when this Court has rejected free exercise challenges, the laws in question have been neutral and generally applicable without regard to religion. We have been careful to distinguish such laws from those that single out the religious for disfavored treatment.....

The Department’s policy expressly discriminates against otherwise eligible recipients by disqualifying them from a public benefit solely because of their religious character.....

Trinity Lutheran is not claiming any entitlement to a subsidy. It instead asserts a right to participate in a government benefit program without having to disavow its religious character.... Trinity Lutheran is a member of the community too, and the State’s decision to exclude it for purposes of this public program must withstand the strictest scrutiny....

Justice Thomas filed a separate opinion concurring in part in which Justice Gorsuch joined. Justice Gorsuch filed a separate opinion concurring in part in which Justice Thomas joined.  Both opinions agreed largely with Justice Roberts, but would have been even stronger in support of the free exercise conclusion.

Justice Sotomayor filed a 27-page dissenting opinion which was joined by Justice Ginsburg, saying in part:

To hear the Court tell it, this is a simple case about recycling tires to resurface a playground. The stakes are higher. This case is about nothing less than the relationship between religious institutions and the civil government—that is, between church and state. The Court today profoundly changes that relationship by holding, for the first time, that the Constitution requires the government to provide public funds directly to a church. Its decision slights both our precedents and our history, and its reasoning weakens this country’s longstanding commitment to a separation of church and state beneficial to both.....

The constitutional provisions of thirty-nine States—all but invalidated today—the weighty interests they protect, and the history they draw on deserve more than this judicial brush aside.

Washington Post reports on the decision.

Supreme Court Grants Review and Partially Lifts Injunctions Against Trump's Travel Ban

The U.S. Supreme Court today in a per curiam opinion in Trump v. International Refugee Assistance Project, (Sup. Ct., June 26, 2017), granted certiorari and partially lifted the outstanding injunctions against enforcement of President Trump's second travel ban Executive Order.  Under the Court's decision, the 90-day ban on entry of nationals from 6 Muslim-majority nations:

may not be enforced against foreign nationals who have a credible claim of a bona fide relationship with a person or entity in the United States. All other foreign nationals are subject to the provisions of EO–2.

The Court gave illustrations of the line it was drawing:

For individuals, a close familial relationship is required. A foreign national who wishes to enter the United States to live with or visit a family member ... clearly has such a relationship. As for entities, the relationship must be formal, documented, and formed in the ordinary course, rather than for the purpose of evading EO–2. The students from the designated countries who have been admitted to the University of Hawaii have such a relationship with an American entity. So too would a worker who accepted an offer of employment from an American company or a lecturer invited to address an American audience. Not so someone who enters into a relationship simply to avoid §2(c): For example, a nonprofit group devoted to immigration issues may not contact foreign nationals from the designated countries, add them to client lists, and then secure their entry by claiming injury from their exclusion.

The Court similarly partially lifted the injunction against enforcement of the suspension of refugee admissions and the lowering of the cap on refugees, saying:

An American individual or entity that has a bona fide relationship with a particular person seeking to enter the country as a refugee can legitimately claim concrete hardship if that person is excluded. As to these individuals and entities, we do not disturb the injunction. But when it comes to refugees who lack any such connection to the United States, ... the balance tips in favor of the Government’s compelling need to provide for the Nation’s security.....

.... Section 6(a) may not be enforced against an individualseeking admission as a refugee who can credibly claim a bona fide relationship with a person or entity in the United States. Nor may §6(b); that is, such a person may not be excluded pursuant to §6(b), even if the 50,000- person cap has been reached or exceeded. As applied to all other individuals, the provisions may take effect.

The Court also ordered that oral arguments in the case be heard during the first session of the October term of the Court. Justice Thomas, joined by Justices Alito and Gorsuch, in a separate opinion dissenting in part said that they would have stayed the preliminary injunctions in full and predicted extensive litigation over what constitutes a bona fide relationship. Washington Post reports on the decision.

Cert. Granted In Dispute Over Refusal To Create Cake For Same-Sex Wedding

The U.S. Supreme Court today granted review in Masterpiece Cake Shop v. Colorado Civil Rights Commission, (Docket No. 16-111, cert. granted  6/26/2017). (Order List).  In the case, a Colorado Court of Appeals held that a bakery owner's free exercise and free speech rights were not infringed when the Colorado Civil Rights Commission found that the refusal to create a wedding cake for a same-sex couple violates Colorado's public accommodation law  (See prior posting.)  The Colorado Supreme Court denied review. (See prior posting.)  The SCOTUSblog case page has links to briefs in the case.

Supreme Court Invalidates Lanham Act Bar To Registration of Disparaging Trademarks

In Matal v. Tam, (Sup. Ct., June 19, 2017), the U.S. Supreme Court today held unconstitutional under the 1st Amendment's free speech protection the provision in the Lanham Trademark Act that prohibits registration of any trademark that

consists of ... immoral, deceptive, or scandalous matter; or matter which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute. (15 U. S. C. §1052(a)). 

The case generated three separate opinions, all ultimately concluding that the refusal to register "The Slants" as the name of an Asian-American rock group amounts to viewpoint discrimination. Five of the justices (Kennedy, Ginsburg, Sotomayor and Kagan, plus Thomas in a separate opinion) held that viewpoint discrimination always triggers heightened scrutiny.  Three others (Alito, Roberts and Breyer) said they need not reach the issue because the restriction does not pass even the lower hurdle for commercial speech. Justice Gorsuch did not participate.  New York Times reports on the decision.

The result of today's decision is that trademarks that disparage religious groups will also be able to be registered.  The rock group had argued that the Lanham Act language only applies to individuals, but in rejecting that, the Court (in a portion of the opinion joined by 7 justices) said:

[The statute] applies to the members of any group whose members share particular “beliefs,” such as political, ideological, and religious groups. It applies to marks that denigrate “institutions,” and on Tam’s reading, it also reaches “juristic” persons such as corporations, unions, and other unincorporated associations. See §1127. Thus, the clause is not limited to marks that disparage a particular natural person. 

Supreme Court Denies Cert. In RFRA Challenge To Court Martial

The U.S. Supreme Court yesterday denied review in Sterling v. United States,(Docket No. 16-814, cert. denied 6/5/2017) (Order List).  In the case, the U.S. Court of Appeals for the Armed Forces held that a Marine Lance Corporal failed to establish a prima facie case under RFRA of a substantial burden to sincerely held religious beliefs in defending against charges growing out of her work space posting of unauthorized signs containing Biblical quotations. (See prior posting.)  Fox News reports on the Supreme Court's action.

Supreme Court: Pension Plans of Religiously Affiliated Hospitals Are ERISA "Church Plans"

Giving a major win to religiously affiliated health care systems, the U.S. Supreme Court today in Advocate Health Care Network v. Stapleton, (Sup. Ct., June 5, 2017), held that their retirement plans qualify as exempt "church plans" under ERISA.  Interpreting ambiguous language in the statute, Justice Kagan writing for a unanimous court (Gorsuch, J. not participating) said:

ERISA provides (1) that a “church plan” means a “plan established and maintained . . . by a church” and (2) that a “plan established and maintained . . . by a church” is to “include[] a plan maintained by” a principal-purpose organization. Under the best reading of the statute, a plan maintained by a principal-purpose organization therefore qualifies as a “church plan,” regardless of who established it. We accordingly reverse the judgments of the Courts of Appeals.

Justice Sotomayor filed an opinion saying that she joins the Court's opinion, but has questions whether if Congress were reconsidering the issue today it would grant the church-plan exemption to some of the largest health-care providers in the country, which is the result of the Court's decision.

Ban On Supreme Court Plaza Demonstrations Does Not Violate RFRA

In Payden-Travers v. Talkin, (D DC, May 31, 2017), the D.C. federal district court dismissed plaintiffs' claim that the statute and court rule that prohibit demonstrations on the Plaza in front of the Supreme Court violate their rights under the Religious Freedom Restoration Act. They contended that their faith requires them to speak out against war, torture and the death penalty, and that merely demonstrating on the sidewalk adjacent to the Court would not make clear to passers-by that their objections were connected to the Court.  The district court held, however, that the ban does not rise to the level of a "substantial burden" as required by RFRA, saying in part:

Plaintiffs do not allege in their complaint that their religions require them to demonstrate and pray in ways such that the public will associate their activities with the United States Supreme Court. It simply alleges that their religions require them to “speak out” and “distance themselves” from certain practices.... [T]here are still countless other means by which Plaintiffs could satisfy this religious obligation, many of which may have nothing to do with the Supreme Court at all. Section 6135 and Regulation 7 prohibit only one. Accordingly, although section 6135 and Regulation 7 prevent Plaintiffs from engaging in religiously motivated conduct at a particular location, the Court concludes that they do not “substantially burden” Plaintiffs’ religious exercise.

Law.com reports on the decision.

Justice Department Seeks Supreme Court Review and Stay In Travel Ban Cases [UPDATED]

As reported by the Washington Post, the Justice Department yesterday in two filing with the U.S. Supreme Court sought to overturn lower court decisions invalidating President Trump's second travel ban executive order.  The U.S. filed a petition for certiorari (full text) in Trump v. International Refugee Assistance Project, asking the Supreme Court to grant review of the 4th Circuit's en banc decision (see prior posting) upholding an injunction against enforcement of Section 2(c) of the Executive Order which imposes a 90-day suspension on entry into the country of nationals of Iran, Libya, Somalia, Sudan, Syria, and Yemen. It also filed a motion (full text) asking the Supreme Court to stay the lower court's injunction while the appeal to the Supreme Court is pending, and asking for expedited consideration of the cert. petition.  Responding to the request for expedited consideration, the Supreme Court on June 2 issued an order calling for respondents to file a response by June 12.

The government also filed an Application for Stay Pending Appeal (full text) in Trump v. State of Hawaii.  The Application asks the Court to stay the preliminary injunction (see prior posting) issued by a Hawaii federal district court while the appeal of that decision is being considered by the 9th Circuit, and to stay it further while any government appeal to the Supreme Court thereafter is pending.The Hawaii decision enjoined enforcement of both Section 2 of the Executive Order (90 day ban on entry into U.S. of nationals of six Muslim-majority nations) and Section 6 (120 day suspension of entry of refugees).

Justice Alito Speaks On Faith and Religious Freedom

As reported by KYW Newsradio, yesterday U.S. Supreme Court Justice Samuel Alito received an honorary degree from Saint Charles Borromeo Seminary in Wynnewood, Pennsylvania. Alito spoke to graduates of the Schools of Philosophy and Theology.  A blog on the school's website also published Faith, Family, and Religious Freedom: A Conversation with Justice Samuel Alito conducted in anticipation of his visit.

Cert. Denied In Challenge To California Sexual Orientation Therapy Ban

The U.S. Supreme Court yesterday denied review in Welch v. Brown (Docket No., 16-845, cert. denied 5/1/2017). (Order List.) In the case, the 9th Circuit rejected facial free exercise and Establishment Clause challenges to California's ban on state-licensed mental health professionals providing "sexual orientation change efforts" for patients under 18. (9th Circuit's amended opinion dated Oct. 3, 2016). (SCOTUSblog case page.)

Supreme Court Hears Arguments In Trinity Lutheran; Transcript Available

Today, the U.S. Supreme Court heard oral arguments in Trinity Lutheran Church of Columbia, Inc. v. Comer.  The transcript of the full oral arguments is now available. At issue was the refusal by Missouri's Department of Natural Resources of a grant application by Trinity Church for a grant that would allow it to resurface a playground at its day care and preschool facility on church premises. In refusing the grant, the Department pointed to Missouri Constitution, Art. I Sec. 7, that prohibits public funds from being spent "in aid of any church, section or denomination of religion." (See prior posting.)  Amy Howe at SCOTUSblog reports on the oral arguments.