Cert. Petition Filed in Suit by Christian College Over Gender Identity Discrimination Under Fair Housing Act

 A petition for certiorari (full text) was filed yesterday asking the U.S. Supreme Court to grant review in The School of the Ozarks v. Biden. In the case, the U.S. 8th Circuit Court of Appeals held that a Christian college lacks standing to challenge a memorandum issued by an acting assistant secretary of the U.S. Department of Housing and Urban Development. The memorandum directs the HUD office that enforces the Fair Housing Act to investigate all discrimination complaints, including discrimination on the basis of sexual orientation or gender identity. The school maintains single-sex residence halls and does not permit transgender individuals to live in residence halls that do not match their biological sex. (See prior posting.) ADF issued a press release announcing the filing of the petition.

Cert. Denied in Challenge to Arkansas' Ban on Companies Boycotting Israel

The U.S. Supreme Court yesterday denied review in Arkansas Times LP v. Waldrip, (Docket No. 22-379, certiorari denied 2/21/2023). (Order List.)  In the case, the U.S. 8th Circuit Court of Appeals sitting en banc, in a 9-1 opinion, upheld against a free speech challenge Arkansas' law requiring public contracts to include a certification from the contractor that it will not boycott Israel.  The 8th Circuit held that the law only bans non-expressive commercial decisions. (See prior posting.) JNS reports on the denial of certiorari. Here is the SCOTUSblog case page with links to briefs filed in the case.

Supreme Court Review Sought in Ministerial Exception Case

 A petition for certiorari (full text) was filed with the U.S. Supreme Court last week in Faith Bible Chapel International v. Tucker, (cert. filed 2/3/2023).  In the case, the U.S. 10th Circuit Court of Appeals by a vote of 6-4, denied en banc review of a panel decision which held that interlocutory appeals from the denial of a ministerial exception defense are not permitted. (See prior posting.) In the case, a former high school teacher and administrator/ chaplain contends that he was fired for opposing alleged racial discrimination by a Christian school. The petition for review frames the Questions Presented in part as follows:

Whether the First Amendment’s “ministerial exception” should be understood as an immunity from judicial interference in church employment decisions falling within the exception, or instead as a mere defense against liability. 

WORLD reports on the petition.  Becket Law has additional background on the case.

Cert. Granted To Review Title VII "Undue Hardship" Test For Religious Accommodation

The U.S. Supreme Court yesterday granted review in Groff v. DeJoy, (Docket No. 22-174, certiorari granted, 1/13/2023). (Order list). In the case, the U.S. 3rd Circuit Court of Appeals, in a 2-1 decision, held that accommodating a Sunday sabbath observer by allowing him not to report for work on Sunday would cause an "undue hardship" to the U.S. Postal Service.  Thus, failure to grant that accommodation did not violate Title VII. (See prior posting.)In the case, petitioners are asking the Supreme Court to revisit and reject the test for "undue hardship" announced in TWA v. Hardison. (cert. petition). Here is SCOTUSblog's case page for the case.

House Hearing Explores Lobbying of Supreme Court by Religious Conservatives

Yesterday, the House Judiciary Committee held a hearing titled Undue Influence: Operation Higher Court and Politicking at SCOTUS. One of the witnesses was Rev. Robert Schenck who, in his written testimony, expanded on his previously published interview with the New York Times.  Schenck recounts his organization's attempts to gain access to Supreme Court Justices through donors to the Supreme Court Historical Society. He said in part:

My purpose was to develop relationships with the Justices who held positions sympathetic to religious conservatives' general concerns. In this way, I could gain insights into their thinking regarding the questions and cases that come before them and, perhaps, read their disposition toward the topics of most significant interest to me and my cohorts. Over time, I also thought my associates and supporters might be able to shore up the resolve of the conservative members. Our concern was for cases we adjudged beneficial to the country's culture, such as those restricting or banning abortion, euthanasia and assisted suicide, as well as same-sex relationships, especially marriage, and those expanding religious liberty, predominantly Christian practice, and public displays of Christian belief. The Historical Society was also a place where my cohorts and I could learn more about the customs, traditions, mores, and protocols of the Court, easing our entry into their social circles.

His testimony went on to describe his learning in advance about the outcome of the Hobby Lobby case. 

Another witness before the Committee, Mark R. Paoletta, in his written testimony sharply criticized Schenck's account, saying that Schenck has "built his career on deception and deceit."  NPR reports on the hearing.

Supreme Court Hears Arguments Today on Wedding Website Designer Who Opposes Same-Sex Marriage

Today the U.S. Supreme Court will hear oral arguments in 303 Creative v. Elenis. 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 religious reasons refuses to create websites that celebrate same-sex marriages. The Court granted certiorari only on the question of "Whether applying a public-accommodation law to compel an artist to speak or stay silent violates the Free Speech Clause of the First Amendment." Over 75 amicus briefs have been filed in the case.  The SCOTUSblog case page has links to them and to other filings in the case. The arguments will be broadcast live beginning at 10:00 AM at this link. SCOTUSblog has a preview of the arguments. I will update this post with links to the recording and transcript of the arguments when they become available later today.

UPDATE: Here are links to the transcript and audio of this morning's oral arguments.

NYT: In 2014 There Was a Leak of the Hobby Lobby Result

The New York Times today posted a lengthy investigative article revealing that the leak of the draft Dobbs opinion earlier this year was not the first time that there had been a leak of information about a decision not yet released by the Supreme Court.  The Times article is based largely on information from Rev. Rob Schenck, formerly the head of an evangelical non-profit, Faith and Action.  In a letter he sent to Chief Justice Roberts after the leak of the Dobbs draft opinion, Schenck said in part:

Back in June 2014, when so many awaited the Court's opinion in Burwell v. Hobby Lobby, I was informed by a donor to the Capitol Hill-based non-profit organization I led that she and her husband would be dining at the home of Justice and Mrs. Alito. She suggested that in their table conversation, she might be able to learn the status of the case, something she knew I had an interest in knowing. I received a follow -up message from her notifying me she had indeed obtained the information during that visit. We spoke on the phone, and she detailed the revelation. As I recall, we talked about the Green family, owners of Hobby Lobby, and how they, too, would be interested in this information.

According to the Times:

Mr. Schenck recruited wealthy donors like Mrs. Wright and her husband, Donald, encouraging them to invite some of the justices to meals, to their vacation homes or to private clubs. He advised allies to contribute money to the Supreme Court Historical Society and then mingle with justices at its functions. He ingratiated himself with court officials who could help give him access, records show.

All the while, he leveraged his connections to raise money for his nonprofit, Faith and Action. Mr. Schenck said he pursued the Hobby Lobby information to cultivate the business’s president, Steve Green, as a donor....

Mr. Schenck, 64, has shifted his views on abortion in recent years, alienating him from many of his former associates, and is trying to re-establish himself, now as a progressive evangelical leader. His decision to speak out now about the Hobby Lobby episode, he said, stems from his regret about the actions that he claims led to his advance knowledge about the case....

[Schenck]  had long been an ends-justify-the-means anti-abortion provocateur....

... Mr. Schenck wanted the conservatives on the court to hear from people who would hail them as heroes if they seized the opportunity to strike down Roe one day. The goal, he said in an interview, was to “embolden the justices” to lay the legal groundwork for an eventual reversal by delivering “unapologetically conservative dissents.”

UPDATE: Here is the Supreme Court Legal Counsel's response to the NYT article.

5th Circuit: District Court's Order on Religious Rights in Execution Chamber Was Too Broad

In Barbee v. Collier, (5th Cir., Nov. 11, 2022), the U.S. 5th Circuit Court of Appeals vacated and remanded for further proceedings an injunction issued by a Texas federal district court that barred the execution of convicted murderer Stephen Barbee until the Texas Department of Criminal Justice publishes a clear policy on inmates' religious rights in the execution chamber. Barbee wants his spiritual advisor to pray aloud with him and hold his hand. (See prior posting.) The 5th Circuit said in part:

While a written policy may be desirable ..., the available remedy for Barbee’s RLUIPA violation “is an injunction ordering the accommodation,” ... As it stands, the preliminary injunction ordering the Defendants to enact a written policy on religious accommodation that would apply to all executions is overbroad and must be vacated. The district court may instead consider what relief specific to Barbee is consistent with Ramirez and is appropriate in this case.

On Monday, Barbee filed with U.S. Supreme Court Justice Samuel Alito an Application for a Stay of Execution (full text) and a Petition for Certiorari (full text). Yesterday, the state filed a Brief in Opposition to Barbee's filings (full text). Barbee's execution is currently scheduled for 6:00 pm Central Time today.  Courthouse News Service reports on these developments.

UPDATE: On Wednesday, Nov. 16, the U.S. Supreme Court denied Barbee's application for a stay of execution and his petition for certiorari. (Full text of Order.). Courthouse News Service reports.

Parties Agree To $2 Million + Attorneys' Fees in Christian Flag Case

After plaintiffs' win in the Supreme Court in Shurtleff v. City of Boston (the Christian flag case), plaintiffs sought to recover attorneys' fees and costs for the five years of litigation. On Nov. 8, the parties filed a Joint Notice of Settlement in the case in a Massachusetts federal district court. The City of Boston will pay $2,125,000 to Liberty Counsel, attorneys for plaintiffs.  Liberty Counsel issued a press release announcing the settlement.

SCOTUS Hears Arguments in Indian Child Welfare Act Case

Yesterday the U.S. Supreme Court heard oral arguments in Haaland v. Brackeen. (Audio and transcript of full oral arguments). SCOTUSblog reported on the arguments. At issue is the constitutionality of the Indian Child Welfare Act of 1978 which attempts to prevent child welfare and adoption agencies from placing Native American children outside of their tribe. (SCOTUSblog case page.) A number of commentators have pointed out that issues of religion underlie the controversy in the four consolidated cases heard yesterday. Religion News Service explains, saying that the Act was a reaction to past efforts by the U.S. government to remove Native American children from their homes and place them in boarding schools:

The U.S. is only now reckoning with the history of its boarding schools, which separated generations of children from their families and prohibited them from speaking Native languages, dressing and wearing their hair in traditional styles and taking part in traditional spiritual practices in an effort to assimilate them into the dominant white Christian culture.

Half of boarding schools likely were supported by Christian institutions, according to a report released earlier this year by the U.S. Department of the Interior. A number of denominations are now researching and repenting for their past involvement.

Emergency Injunction Against NYC City-Worker Vaccine Mandates Sought from Supreme Court

An Emergency Application for an Injunction Pending Appellate Review (full text) was filed with the U.S. Supreme Court yesterday in New Yorkers for Religious Liberty v. City of New York.  The petition seeks an injunction against enforcing New York City's Covid vaccine mandates for city workers against those with religious objections to the vaccine. Petitioners argue in part:

Because the City’s Mandates provide for individualized exemptions, play denominational favorites, grant the government substantial discretion, and treat religious objectors less favorably than secular (e.g., economic) objectors, the Mandates violate Applicants’ free-exercise rights.

ADF issued a press release announcing the filing of the application.

Cert. Denied in Mootness Dismissal of Free Exercise Challenge to Mask Mandate

The U.S. Supreme Court this morning denied review in Resurrection School v. Hertel, (Docket No. 22-181, certiorari denied 10/31/2022). (Order List.) In the case, an en banc panel of the U.S. 6th Circuit Court of Appeals held by a vote of 13-1-3 that a free exercise challenge to Michigan's COVID mask mandate for school children is moot. (See prior posting.)

Certiorari Filed in Challenge to Arkansas Anti-BDS Law

 A petition for certiorari (full text) has been filed with the U.S. Supreme Court in Arkansas Times, LP v. Waldrip, (Sup. Ct., filed 10/20/2022). In the case, the U.S. 8th Circuit Court of Appeals sitting en banc, in a 9-1 opinion, upheld against a free speech challenge Arkansas' law requiring public contracts to include a certification from the contractor that it will not boycott Israel. (See prior posting.) ACLU issued a press release announcing the filing of the petition for review.

Certiorari Denied In Scientology Arbitration Case and Falun Gong Leafleting Case

Today's 48-page Order List from the U.S. Supreme Court on its opening day of the term includes the denial of review in two cases of interest:

Church of Scientology v. Bixler (Docket No. 22-60, cert. denied 10/3/2022): In the case, a California state appellate court held that former Church of Scientology members were not bound by their agreement to submit all disputes with the Church to the Church's Religious Arbitration system when the dispute involves conduct that occurred after plaintiffs left the Church. (See prior posting.)

Zhang Jingrong v. Chinese Anti-Cult World Alliance, Inc. (Docket No. 21-1429, cert. denied 10/3/2022) and Chinese Anti-Cult World Alliance, Inc. v. Zhang Jinrong (Docket No. 21-1556, cert. denied 10/3/2022)- In the case the 2nd Circuit Court of Appeals held that five tables on the sidewalk in Flushing, Queens, New York where Falun Gong adherents passed out flyers and displayed posters were not a "place of religious worship" under the Freedom of Access To Clinics Entrances Act that prohibits intentionally injuring, intimidating, or interfering with anyone who is exercising 1st Amendment religious freedom rights “at a place of religious worship.” In addition, the cross-petition for review raised the issue of the validity of the statute under the commerce clause. (See prior posting.)

Supreme Court Opens Its October 2022 Term Today

The Supreme Court opens its new term this morning.  Washington Times reports that the traditional Red Mass that precedes the Court's new term was held yesterday at Washington's Cathedral of St. Matthew the Apostle.  Chief Justice Roberts, Justice Barret and retired Justice Breyer attended. Among the cases already on the Court's docket for this term is 303 Creative LLC v. Elenis (SCOTUS blog case page). The date for its oral argument has not yet been set. 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 religious reasons refuses to create websites that celebrate same-sex marriages. (See prior posting.) The Court granted review only on the free speech issue in the case. The Court will continue to broadcast live audio feed of oral arguments at this link. We can also expect the traditional First Monday long Order List to be released this morning.

Yeshiva University Suspends All Student Organization Activities Rather Than Recognize LGBTQ Organization

As previously reported, the U.S. Supreme Court last week in Yeshiva University v. YU Pride Alliance ordered Yeshiva University to first seek relief through appeals in state courts before asking the U.S. Supreme Court to stay a state trial court order requiring it to recognize an LGBTQ student group. Now, as reported by CNN, the University on Friday announced that it would put all undergraduate club activities on hold while it "takes steps to follow the roadmap provided by the US Supreme Court..."

UPDATE: Religion News Service reports:

A Jewish LGBTQ organization [JQY] announced Tuesday (Sept. 20) that it will step in to provide funding for all student clubs at Yeshiva University after school officials suspended all undergraduate student groups rather than recognize an LGBTQ campus group, the YU Pride Alliance.

UPDATE 2: In a statement (full text) issued Sept. 21, YU Pride Alliance announced that it would agree to a stay of the order requiring the University to recognize it while the litigation continues because it does not want YU to punish fellow-students. As reported by The Commentator, the University welcomed the response, saying it offers an opportunity for continuing discussions.

Supreme Court Vacates Stay of Injunction Against Yeshiva University, Sending Case Back To State Courts

The U.S. Supreme court yesterday in Yeshiva University v. YU Pride Alliance, (Sup. Ct., Sept. 14, 2022), vacated the stay issued on Sept. 9 by Justice Sotomayor of a New York state trial court's injunction that required Yeshiva University to officially recognize as a student organization an LGBTQ group, YU Pride Alliance. In a 5-4 vote, the Court issued the following opinion directing the University to first seek expedited review and interim relief from New York trial courts.  Here is the full opinion [paragraph breaks added]:

The application (22A184) for stay pending appeal of a permanent injunction entered by the New York trial court, presented to Justice Sotomayor and by her referred to the Court, is denied without prejudice to applicants again seeking relief from this Court if, upon properly seeking expedited review and interim relief from the New York courts, applicants receive neither. The order heretofore entered by Justice Sotomayor is vacated.

Applicants Yeshiva University and its president seek emergency relief from a non-final order of the New York trial court requiring the University to treat an LGBTQ student group similarly to other student groups in its student club recognition process. The application is denied because it appears that applicants have at least two further avenues for expedited or interim state court relief. First, applicants may ask the New York courts to expedite consideration of the merits of their appeal. Applicants do not assert, nor does the Appellate Division docket reveal, that they have ever requested such relief. Second, applicants may file with the Appellate Division a corrected motion for permission to appeal that court’s denial of a stay to the New York Court of Appeals, as the Appellate Division clerk’s office directed applicants to do on August 25. Applicants may also ask the Appellate Division to expedite consideration of that motion.

If applicants seek and receive neither expedited review nor interim relief from the New York courts, they may return to this Court.

Justice Alito, with whom Justice Thomas, Justice Gorsuch, and Justice Barrett join, dissent.

NY Jewish Week reports on the decision. [Thanks to Rabbi Michael Simon for the lead.]

UPDATE: Here is the full text of Justice Alito's dissent. He said in part:

At least four of us are likely to vote to grant certiorari if Yeshiva’s First Amendment arguments are rejected on appeal, and Yeshiva would likely win if its case came before us. A State’s imposition of its own mandatory interpretation of scripture is a shocking development that calls out for review. The Free Exercise Clause protects the ability of religious schools to educate in accordance with their faith.

Certiorari Petition Filed Again In Bakery's Refusal To Design Wedding Cake For Same-Sex Marriage

Last week, a petition for certiorari (full text) was filed with the U.S. Supreme Court in Klein v. Oregon Bureau of Labor and Industries, (Sup. Ct., filed 9/7/2022). This is the second time the case has worked its way up to the Supreme Court. (See prior posting.) At issue is a finding by the state Bureau of Labor and Industries that Sweetcakes bakery violated the state's public accommodation law when it refused on religious grounds to design and create a wedding cake for a same-sex wedding. In January, the state court of appeals remanded the case to the Bureau of Labor and Industries for it to determine a remedy after finding that the Bureau's first determination of damages was tainted by non-neutrality. (See prior posting.) In August, the Bureau imposed damages of $30,000. First Liberty has additional background.

Justice Sotomayor Stays NY Order Requiring Yeshiva University To Recognize LGBTQ Group

In Yeshiva University v. YU Pride Alliance, (Sup. Ct., Sept. 9, 2022),  U.S. Supreme Court Justice Sonia Sotomayor today issued an order staying a New York trial court's injunction that required Yeshiva University to officially recognize as a student organization an LGBTQ group, YU Pride Alliance. The New York trial court held that applying the public accommodation provisions of the New York City Human Rights Law to Yeshiva does not violate its First Amendment free exercise or free speech rights. (See prior posting.) Justice Sotomayor granted the University's Emergency Application for a Stay Pending Appellate Review without referring the petition to the full Court. However she wrote that her stay was granted "pending further order of the undersigned or of the Court." CNN reports on developments.

Postal Worker Seeks Supreme Court Modification Of Title VII Precedents On Reasonable Accommodation

A petition for certiorari (full text) was filed yesterday with the U.S. Supreme Court in Groff v. DeJoy. In the case, the U.S. 3rd Circuit Court of Appeals, in a 2-1 decision, held that accommodating a Sunday sabbath observer by allowing him not to report for work on Sunday would cause an "undue hardship" to the U.S. Postal Service.  Thus, failure to grant that accommodation did not violate Title VII. (See prior posting.) Appellants are asking the Supreme Court to repudiate the definition of "undue hardship" which the Court approved in its 1977 decision in TWA v. Hardison. First Liberty issued a press release announcing the filing of the petition for review.