Supreme Court Denies Review In Oklahoma License Plate Controversy

Yesterday the U.S. Supreme Court denied certorari in Cressman v. Thompson,  (Docket No. 15-709, cert. denied 3/21/2016) (Order List). In the case, the 10th Circuit rejected a compelled speech challenge to Oklahoma's vehicle license plates whose design show a Native American shooting an arrow towards the sky. Plaintiff claimed that the depiction is based on a Native American legend, and in violation of his Christian beliefs the depiction teaches there are multiple gods and that the arrow is an intermediary for prayer. (See prior posting.) AP reports on the Court's denial of review. [Thanks to Tom Rutledge for the lead.]

Obama's Nominee To Supreme Court Has Said Little On Religious Freedom Issues

Today President Obama nominated Chief Judge Merrick Garland to fill the seat of the late Justice Antonin Scalia on the U.S. Supreme Court. (President's remarks announcing the nomination). (White House  media release with background information).  While Garland has served on the D.C. Circuit for 19 years (and served as Chief Judge since 2013) he has had little to say in judicial opinions about religious liberty or church-state separation.

The only opinion involving religious freedom claims actually authored by Judge Garland was Ciralsky v. CIA, 355 F.3d 661 (Jan. 30, 2004) which involved a claim by a former CIA lawyer that he had been fired solely because of his practice of the Jewish religion.  The opinion dealt solely with procedural issues growing out of the complaint being long, repetitive and argumentative.

Garland has served on 3-judge panels in a number of cases involving religious freedom or religious discrimination issues, joining an opinion written by one of the other judges on the panel.  Here is a brief summary of those cases:

• Henderson v. Kennedy, 253 F.3d 12 (Feb. 13, 2001), rehearing denied 265 F.3d 1072 (Oct. 2, 2001): The court ruled against evangelical Christians who claimed a National Park Service regulation prohibiting the sale of t-shirts on the National Mall violated RFRA and the equal protection clause.
  
• Levitan v. Ashcroft, 281 F.3d 1313 (March 8, 2002): in a Catholic inmate's challenge to a prison rule barring consumption small amounts of wine as part of Communion, the court held that a religious practice need not be a mandatory part of a religious creed to be protected by 1st Amendment.
  
• Conservation Law Foundation v. FERC, 216 F.3d 41 (June 23, 2000). The court found that there was no violation of the American Indian Religious Freedom Act by the Federal Energy Regulatory Commission in its re-licensing of a hydroelectric project.
  
• In re England, 375 F.3d 1169 (July 27, 2004). Non-liturgical chaplains sued the Navy alleging discrimination.  The court refused to compel the Secretary of the Navy to release selection board members from their oath of confidentiality, to allow them to testify about selection board proceedings.
  
• McKeithan v. Boarman, 2012 U.S. App. LEXIS 9024 (April 12, 2012). Summary dismissal of a suit charging discrimination based on sex and religion for failure to state a claim.
  
• Village of Bensenville v. FAA, 2006 U.S. App. LEXIS 1166 (Jan. 17, 2006). The court refused to grant a stay pending appeal of a district court opinion allowing expansion of O'Hare Airport. At issue was a RFRA challenge to the relocation of remains from a cemetery.

Finally, Garland was a member of several en banc panels that ruled (either summarily or in opinions by others) on issues related to religious rights:

• In Priests for Life v. United States HHS, 808 F.3d 1 (May 20, 2015), Judge Garland was part of the en banc panel that denied a rehearing in a case that rejected a religious non-profit's challenge to the Obamacare contraceptive mandate compromise.  Garland did not join either the concurring or dissenting opinions filed with the per curiam order.  The case is currently before the U.S. Supreme Court.
  
• In re Charges of Judicial Misconduct, 769 F.3d 762 (Aug. 12, 2014). Judge Garland was part of the en banc panel that accepted the recommendation of a special committee to dismiss misconduct charges against Judge Edith Jones. One of the charges involved Jones invoking her religious beliefs to justify the death penalty.
• Newdow v. Roberts, 2010 U.S. App. LEXIS 27590 (June 29, 2010). Judge Garland was part of an en banc panel that denied a rehearing in case challenging religious elements in Presidential inaugurations.

If Garland is confirmed, he will bring the number of Jewish justices on the Supreme Court to 4.  The remaining 5 justices are Catholic. The New Yorker has an excellent background piece on other aspects of Chief Judge Garland's career.

UPDATE: Religion News Service has two interesting articles regarding Garland's religious beliefs: Merrick Garland is Jewish. Does it matter? and Obama plays the Jewish card, leaving GOP in a pickle.

UPDATE 2: Another opinion written by Judge Garland, Payne v. Salazar, 619 F.3d 56 (2010), should probably also be classified as a religious freedom case.  At issue were procedural questions on when a plaintiff can bring suit because of retaliation against her by her supervisor for filing a religious discrimination complaint.

Next SCOTUS Nominee Might Be A Hindu

Washington Post, in an article titled What would a Hindu justice mean for the Supreme Court?, reported that D.C. Circuit Judge Sri Srinivasan is on President Obama's shortening list of potential Supreme Court nominees.  He would be the first Hindu justice ever to serve on the Supreme Court.  When sworn in as judge on the D.C. Circuit, Srinivasan took the oath on the Bhagavad Gita. Most of those interviewed by the Post suggested that Srinivasan's faith would have little impact on the positions he would take on the Court.  While Protestants are the largest religious group in the United States, no Protestant (mainline or evangelical) has been on the Supreme Court since Justice Stevens retirement in 2010.

Supreme Court Denies Cert. In Bus Ad Case; Thomas Dissents

Yesterday the U.S. Supreme Court denied certiorari in American Freedom Defense Initiative v. King County, Washington, (Docket No. 15-584, cert. denied 3/7/2016). However Justice Thomas wrote an 8-page dissent to the denial of cert.  Justice Alito joined the dissent. (Order List at pg. 59).  They urged the Court to use the case to resolve the split among Circuits on whether advertising space on public buses should be categorized for First Amendment purposes as designated public forums or limited public forums.  Transit authorities have greater control over content in limited public forums.  AFDI, the appellant in this case, has been involved in a number of the other cases raising the same issue, and some of its ads in other cases have been attacked as anti-Muslim. (See prior posting.)

Meanwhile Reuters reported yesterday:

Humorous ads for a documentary film that aims to promote understanding and tolerance of Muslims went up in New York subways on Monday after the movie's production company won a legal battle with the city's transit authority....

The advertisements debuted after a federal court in Manhattan ruled in October that being Muslim was a religious, not a political, identity. The Metropolitan Transportation Authority has a policy prohibiting political speech in ads on public transportation.

Supreme Court Preserves Abortion Status Quo In Louisiana While It Considers Similar Case

Th U.S. Supreme Court today issued an order preserving the status quo in Louisiana while the Court considers Whole Woman's Health, the abortion case from Texas that was argued this week. (See prior posting.) The 5th Circuit had stayed a district court's preliminary injunction against enforcement of a Louisiana law requiring abortion providers to have admitting privileges at a local hospital. The 5th Circuit's stay had the effect of allowing Louisiana's contested law to go into effect. Today in June Medical Services LLC v. Gee the U.S. Supreme Court issued the following order:

Consistent with the Court’s action granting a stay in Whole Woman’s Health v. Cole, No. 14A1288 (June 29, 2015), the application to vacate the stay entered by the United States Court of Appeals for the Fifth Circuit on February 24, 2016, presented to Justice Thomas and by him referred to the Court, is granted and the Fifth Circuit’s stay of the district court’s injunction is vacated.

Justice Thomas would deny the application.

This order was in response to June Medical's Emergency Application to Vacate Stay of Preliminary Injunction Pending Appeal (full text).

Cert. Denied In Challenge To N.J. Conversion Therapy Ban

The U.S. Supreme Court yesterday denied certiorari in Doe v. Christie, (Docket No. 15-195, cert. denied 2/20/2016) (Order List.)  In the case, the U.S. 3rd Circuit Court of Appeals upheld a New Jersey statute that prohibits mental health professionals from engaging in "sexual orientation change efforts" with minors. (See prior posting.) Liberty Counsel issued a press release on the Court's action.

Cert Denied In Prisoner Free Exercise Case Over Alito's Dissenting Opinion

The U.S. Supreme Court today denied certiorari in Ben-Levi v. Brown, (Docket No. 14-1086, cert. denied 2/29/2016) over a lengthy dissent to denial of review by Justice Alito (at pg. 39 of Order List). In the case, the lower courts (district court, 4th Cir.) upheld a rule of the North Carolina prison system which requires either a minyan (ten participants) or the presence of a qualified leader (such as a rabbi) in order for a Jewish Bible study group to meet.  Other religious groups were allowed to meet without a specified number of participants or an outside volunteer.  The prison system's rule for Jewish inmates was based on the prison system's understanding of Jewish religious doctrine. Dissenting from the denial of review, Justice Alito wrote:

In essence, respondent’s argument—which was accepted by the courts below—is that Ben-Levi’s religious exercise was not burdened because he misunderstands his own religion..... The argument that a plaintiff’s own interpretation of his or her religion must yield to the government’s interpretation is foreclosed by our precedents.... Even assuming that respondent accurately identified the requirements for a group Torah study under Jewish doctrine—and that is not at all clear—federal courts have no warrant to evaluate “‘the validity of [Ben-Levi’s] interpretations.’”

[Thanks to Marty Lederman via Religionlaw for the lead.] 

Amicus Briefs Supporting Government In Zubik Case Are Filed

Feb. 17 was the deadline to file amicus briefs with the U.S. Supreme Court in support of the government's position in Zubik v. Burwell and its companion cases which challenge the accommodation for religious non-profits that object to the contraceptive coverage mandate under the Affordable Care Act.  21 amicus briefs were filed, and SCOTUSblog has links to most of them, as well as to the amicus briefs supporting petitioner which where due last month. (See prior posting.) Oral argument is set for March 23. With the death of Justice Scalia, the possibility of an evenly divided court is present.  That would affirm the Circuit Court decisions in all 7 of the cases in which review was granted.

Justice Scalia's Opinions on Religion Clauses and Religious Issues (Updated)

The media continue to be filled with tributes to Justice Antonin Scalia who died suddenly over the week end. (See prior posting).  Religion News Service and NPR review Justice Scalia's views on religion, the religion clauses of the 1st Amendment and on social issues that have become religious flash points.

Here are links to cases involving issues of religion, religious exercise or religious speech in which Scalia wrote opinions (either majority, concurring or dissenting):

• Edwards v. Aguillard, (1987) (dissenting opinion)
• Employment Division v. Smith, (1990) (majority opinion)
• Lee v. Weisman, (1992) (dissenting opinion)
• Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, (1993) (concurring opinion)
• Lamb's Chapel v. Center Moriches Union Free School District, (1993) (concurring opinion)
• Board of Education of Kiryas Joel Village School District v. Grumet, (1994) (dissenting opinion).
• Capitol Square Review and Advisory Board v. Pinette, (1995) (opinion of the court)
• City of Boerne v. Flores, (1997) (concurring opinion)
• Watchtower Bible and Tract Society of New York, Inc. v. Village of Stratton, (2002) (concurring opinion)
• Locke v. Davey, (2004) (dissenting opinion)
• Van Orden v. Perry, (2005) (concurring opinion)
• McCreary County v. ACLU, (2005) (dissenting opinion)
• Elmbrook School District v. Doe, (2014) (dissent to denial of cert.)
• EEOC v. Abercrombie & Fitch Stores, Inc., (2015) (majority opinion)

Here are opinions he wrote on issues of abortion, homosexuality and same-sex marriage:

• Webster v. Reproductive Health Services, (1989) (concurring in part)
• Ohio v. Akron Center for Reproductive Health, (1990) (concurring opinion)
• Planned Parenthood of Southeastern Pennsylvania v. Casey, (1992) (concurring and dissenting)
• Shenck v. Pro-Choice Network of Western New York, (1997) (concurring and dissenting)
• Stenberg v. Carhart, (2000) (dissenting opinion)
• Lawrence v. Texas, (2003) (dissenting opinion)
• Obergefell v. Hodges, (2015) (dissenting opinion)

These lists are almost certainly incomplete.  I invite readers to continue to send along citations to others that should be added.

Justice Scalia Dies; Author of Smith Decision

U.S. Supreme Court Justice Antonin Scalia died today at age 79. The New York Times eulogized him as a justice whose "transformative legal theories, vivid writing and outsize personality made him a leader of a conservative intellectual renaissance."  In the area of First Amendment religious freedom decisions, Justice Scalia will be particularly remembered as the author of the majority  opinion in Employment Division v. Smith (1990) which rejected use of the "compelling interest" test to validate neutral regulations of general applicability that burden religious practices.  He argued:

Precisely because "we are a cosmopolitan nation made up of people of almost every conceivable religious preference," ... and precisely because we value and protect that religious divergence, we cannot afford the luxury of deeming presumptively invalid, as applied to the religious objector, every regulation of conduct that does not protect an interest of the highest order. The rule respondents favor would open the prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind 

It was the reaction to this decision that led Congress, in  a nearly unanimous vote, to enact the Religious Freedom Restoration Act.

SCOTUS: State Courts Can Award Attorneys' Fees In Sec. 1983 Cases Only If Suit Was Unreasonable

Suits under 42 USC Sec. 1983 for deprivation of federal civil rights may be brought in state court as well as federal court. Today the U.S. Supreme Court in a per curiam opinion published at the end of its Order List held that state courts are bound by the Supreme Court's interpretation of provisions regarding award of attorneys' fees to defendants in Sec. 1983 actions.  In James v. City of Boise, Idaho, (Sup. Ct., Jan. 25, 2016), the Supreme Court reversed a decision of the Idaho Supreme Court that had held in awarding attorneys' fees under 42 USC Sec. 1988, state courts could ignore the U.S. Supreme Court's interpretation of the statute that limited awards to cases where plaintiff's suit is frivolous, unreasonable, or without foundation.  Idaho had taken the position that since this limitation is not found in the words of the statute, the Supreme Court was merely limiting the discretion of federal courts. The U.S. Supreme Court however, citing cased dating back as far as the 19th century, held that once the Supreme Court interprets federal law, it is the duty of state courts to follow that interpretation.

Supreme Court Grants Review In Missouri Blaine Amendment Case

The U.S. Supreme Court today granted certiorari in Trinity Lutheran Church v. Pauley, (Docket No. 15-577, cert. granted 1/15/2016) (Order List).  In the case, the the U.S. 8th Circuit Court of Appeals, in a 2-1 decision, rejected arguments that Missouri's Blaine Amendments violate the U.S. Constitution's 1st and 14th Amendments. At issue was the denial by Missouri's Department of Natural Resources of a grant application by Trinity Church for a Playground Scrap Tire Surface Material Grant that would have allowed it to resurface a playground at its day care and preschool facility on church premises. (See prior posting.) The petition for certiorari (full text) framed the Question Presented as follows:

Whether the exclusion of churches from an otherwise neutral and secular aid program violates the Free Exercise and Equal Protection Clauses when the state has no valid Establishment Clause concern.

SCOTUSblog's case page has links to all the briefs.

Amicus Briefs Supporting Petitioners In Zubik Are Now Available

Monday was the deadline to file amicus briefs with the U.S. Supreme Court in support of petitioners in Zubik v. Burwell and its companion cases which challenge the accommodation for religious non-profits that object to the contraceptive coverage mandate under the Affordable Care Act.  Forty-two amicus briefs were filed, and Becket Fund has links to the full text of all of them. Amicus briefs in support of the government's position will be due by Feb. 17 (ten days after the due date for respondent's brief).  Here is SCOTUSblog's case page on Zubik.

Cert. Denied In Challenge To ACA Religious Conscience Exemption

On Monday, the U.S. Supreme Court denied certiorari in Cutler v. Department of Health and Human Services, (Docket No. 15-632, cert. denied 1/11/2016) (Order List).  In the case, the D.C. Circuit rejected an Establishment Clause challenge to the religious conscience exemption in the Affordable Care Act which exempts from the individual mandate members of certain traditional religious groups such as the Amish and Mennonites. (See prior posting.)

Unusual Amicus Brief In SCOTUS Challenge To Texas Abortion Regulation

The U.S. Supreme Court has set March 2 for oral argument in Whole Woman’s Health v. Cole, a challenge to Texas regulations that could result in 75% of the state's abortion clinics being forced to close. (Case page from SCOTUblog). National Law Journal reports on an unusual amicus brief (full text) filed in the case this week.  The brief was submitted by 107 women lawyers, as well as 6 current law students, with the aim of demonstrating the importance of abortion rights to members of the legal profession.  According to the brief:

Amici are lawyers who have obtained abortions and who have participated in a wide variety of different aspects of the legal profession, including at private law firms, corporations, multinational governmental organizations, nonprofit organizations, and law schools....

Amici obtained their abortions at different ages and life stages, under a variety of circumstances, and for a range of reasons both medical and personal, but they are united in their strongly-held belief that they would not have been able to achieve the personal or professional successes they have achieved were it not for their ability to obtain safe and legal abortions.

Cert Filed In Challenge By Pharmacies To Required Filling of Emergency Contraception RX

Yesterday a petition for certiorari (full text) was filed with the U.S. Supreme Court in Stormans Inc. v. Wiesman, (cert. filed, 1/4/2016).  In the case, the U.S. 9th Circuit Court of Appeals upheld rules of the Washington Pharmacy Quality Assurance Commission that provide only limited accommodation to pharmacists and pharmacies that object on religious grounds to filling prescriptions for emergency contraception. The rules require pharmacies to deliver all prescription medications, even if the owner has a religious objection. An individual pharmacist with religious objections may refuse to fill a prescription only if another pharmacist working for the pharmacy does so. (See prior posting.) ADF issued a press release announcing the filing of the petition.

Story of Justice McReynolds' Anti-Semitic Photo Refusal Is Debunked

National Law Journal reported yesterday that research by a staffer in the U.S. Supreme Court curator's office has proven false an often-repeated story that no 1924 photograph of Supreme Court justices was taken because the anti-Semitic Justice James McReynolds' would not sit next to Justice Louis Brandeis for the photo.  It turns out that group photos are taken only when a new justice comes onto the court, which was not the case in 1924.  It was the case however that one photo studio that was passed over for the 1923 photo lobbied Chief Justice Taft for an extra photo in 1924, and McReynolds (known for his disagreeable temperament) balked at the idea.  McReynolds does appear in nine other group photos between 1914 and 1941 with Jewish justices, though never next to them because the tradition of seating-by-seniority did not place him there.

Supreme Court Grants Cert In Prisoner Rights Case

Yesterday the U.S. Supreme Court granted certiorari in a prisoner rights case, Ross v. Blake, (Docket No. 15-339, cert. denied 12/11/2015) (Order List).  While the case does not raise prisoner free exercise issues, its resolution will impact litigation by prisoners claiming failure to accommodate religious beliefs.  In the case, the 4th Circuit in a 2-1 decision (full text) held that the requirement in the Prison Litigation Reform Act that an inmate exhaust administrative remedies before filing suit is satisfied when the inmate reasonably, though erroneously, believed he had exhausted all internal remedies.  SCOTUSblog's case page with links to all the filings in the case is here.

Supreme Court Denies Review Of California Donor Disclosure Law

The U.S. Supreme Court yesterday denied certiorari in Center for Competitive Politics v. Harris, (Docket No. 15-152, cert. denied 11/9/2015). (Order List).  In the case, the U.S. 9th Circuit Court of Appeals upheld California's requirement that in order to solicit tax deductible contributions in the state, a charity or other non-profit must file a non-public annual report that includes an unredacted IRS Form 990 Schedule B, the names and contributions of significant donors. (See prior posting.) AP reports on the Supreme Court's action.

Appellant In Contraceptive Mandate Case Creates "Novena To Reverse HHS Mandate"

As previously reported, last week the U.S. Supreme Court granted certiorari in seven cases brought by various religious non-profits challenging the Obama Administration's accommodation for non-profits that object to furnishing contraceptive coverage in their employee health insurance plans. One of the plaintiffs that is pressing a challenge at the Supreme Court level is the Catholic pro-life organization Priests For Life. Yesterday the group announced that it had created a Novena to Reverse HHS Mandate (a series of nine prayers to be recited on successive days), and invited individuals, families, churches and schools to join in the prayer campaign.  Here are two excerpts from the Novenas:

At this moment, therefore, when our government has decided to force us to cooperate in evil, we pray for the grace to be faithful to you and to oppose the unjust laws and mandates that have been imposed upon us and our institutions.....

We pray, Lord, for our President and for the thousands of people who serve in his administration. We pray that you enlighten and guide them, and free them from the deception of evil.