Supreme Court Grants Review In 7 Cases Challenging ACA Religious Non-Profit Accommodation On Contraceptive Coverage

The U.S. Supreme Court today granted certiorari in all seven of the cases pending before it that challenge the Obama Administration's Affordable Care Act regulations accommodating religious non-profit institutions that object to furnishing contraceptive coverage in their health insurance plans. The Court also consolidated the cases for review. (Order list.) The religious hospitals, colleges and charities involved all claim that the accommodation does not go far enough and still forces them to be complicit in furnishing contraceptive coverage. The Court limited its grant of certiorari to questions of whether the regulations' impact on the religious exercise of the non-profits violates the Religious Freedom Restoration Act. Becket Fund has links to the petitions for certiorari in all the cases, as well as to the reply and amicus briefs.  The cases are Zubik v. Burwell (3rd Circuit); Priests for Life v. Department of Health & Human Services (D.C. Circuit); Roman Catholic Archbishop v. Burwell (D.C. Circuit); East Texas Baptist University v. Burwell (5th Circuit); Little Sisters of the Poor v. Burwell (10th Circuit); Southern Nazarene University v. Burwell (10th Circuit); and Geneva College v. Burwell (3rd Circuit).  All of these circuit court decisions upheld the accommodation.  The two cases from the 8th Circuit which held that the accommodation violates RFRA (see prior posting) have not yet reached the Supreme Court. The Washington Post reports on the Court's action.

Cert. Filed In Refusal By State To Allow Church School To Participate In Playground Grant Program

A petition for certiorari (full text) was filed yesterday with the U.S. Supreme Court in Trinity Lutheran Church of Columbia, Inc. v. Pauley.  In the case, the U.S. 8th Circuit Court of Appeals rejected arguments that Missouri's Blaine Amendments violate the free exercise, establishment and equal protection clauses of the federal Constitution. At issue was the refusal by Missouri's Department of Natural Resources of a grant application by Trinity Church for a Playground Scrap Tire Surface Material Grant that would allow it to resurface a playground at its day care and preschool facility on church premises. (See prior posting.) ADF issued a press release announcing the filing of the petition.

Supreme Court Hears Oral Arguments In Indigent Prisoner Fee Case

Yesterday, the U.S. Supreme Court heard oral arguments (full transcript of arguments)  in Bruce v. Samuels, a case raising an issue important to indigent prisoners suing to challenge their conditions of confinement, including infringements on their free exercise of religion. A provision in the Prison Litigation Reform Act caps monthly payments by prisoners proceeding in forma pauperis at 20% (28 USC 1915(b)(2)).  At issue in the case is whether a prisoner who files multiple cases or appeals has his monthly payment capped at 20% of his total income, or whether he must pay 20% of his income each month for each pending case. (See prior posting.) SCOTUSblog analyzed the oral arguments, saying that some of the justices' questions surprised the lawyers. USA Today also reports on the arguments.

Two Cert Denials of Interest As SCOTUS Opens 2015 Term

In the Order List issued yesterday at the beginning of the October 2015 Term, the U.S. Supreme Court denied certiorari in hundreds cases.  Among the cases in which the Court denied review were:

Phillips v. New York (Docket No. 14-1445): In the case, the U.S. 2nd Circuit Court of Appeals he U.S. Second Circuit Court of Appeals upheld New York's requirement that, subject to medical and religious exemptions, all children be vaccinated before attending public school. It also upheld, over free exercise objections, New York's regulation allowing officials to temporarily exclude students who are exempted from the vaccination requirement on religious grounds from school during an outbreak of a vaccine‐preventable disease. (See prior posting.) AP reports on the Court's action.

Sac and Fox Nation of Oklahoma v. Thorpe (Docket No. 14-1419): In the case the U.S. 3rd Circuit Court of Appeals held that despite its literal language, Congress did not intend the Native American Graves Protection and Repatriation Act to apply to protect Native American rights in a dispute between the sons of famous Native American Athlete Jim Thorpe and the Pennsylvania town that renamed itself after Thorpe in an agreement with Thorpe's widow (his third wife) to have his remains buried there.  (See prior posting). New York Daily News has more background and reports on the court's action.

Supreme Court Refuses To Stay Order Requiring Kentucky Clerk To Issue Same-Sex Marriage Licenses

The U.S. Supreme Court yesterday in Davis v. Miller denied an application (full text of order) to stay pending appeal a district court decision requiring a Kentucky count clerk to issue marriage licenses to same-sex couples.  The clerk, Kim Davis, has religious objections to same-sex marriage. The application made to Justice Kagan was referred by her to the full Court which denied the stay. New York Times reports on the Supreme Court's decision.

Kentucky Clerk Seeks Supreme Court Stay of Order Requiring Her To Issue Same-Sex Marriage Licenses

Today, Kim Davis, the Rowan County, Kentucky court clerk who has been refusing to allow her office to issue marriage licenses because of her religious objections to same-sex marriage, filed with the U.S. Supreme Court an Emergency Application (full text) to stay the district court's order against her while she appeals to the 6th Circuit.  The application, filed with Justice Kagan who is Circuit Justice for the 6th Circuit, includes a 40-page memorandum of law supporting the request for a stay.  The 6th Circuit has already refused a stay pending appeal. (See prior posting.)  A Liberty Counsel press release reported on the filing.

Cert. Petition Filed In Challenge To Non-Profit Contraceptive Coverage Accommodataion

Yesterday a petition for certiorari (full text) was filed with the U.S. Supreme Court in Little Sisters of the Poor Home for the Aged, Denver Colorado v. Burwell.  In the case, the U.S. 10th Circuit Court of Appeals upheld against RFRA and constitutional challenges the Obama Administration's Affordable Care Act accommodation for religious non-profits that object to furnishing contraceptive coverage. (See prior posting.) Becket Fund issued a press release announcing the filing of the petition for review.

Supreme Court Orders Stay of Sorts In Non-Profit Contraceptive Mandate Case

In Zubik v. Buwell, the U.S. 3rd Circuit Court of Appeals upheld the Obama Administration's rules accommodating the Affordable Care Act contraceptive coverage mandate to religious non-profits. (See prior posting.)  Plaintiffs sought a stay from the Supreme Court, and in April Justice Alito issued an order temporarily staying the mandate as to the Catholic Diocese of Erie and the Catholic Diocese of Pittsburgh along with affiliated charities and schools in the two dioceses (See prior posting.) He then referred the plaintiffs' motion to the full Court, and yesterday the Court issued the following Order :

The application for an order recalling and staying the issuance of the mandate of the Court of Appeals pending the filing and disposition of a petition for a writ of certiorari, having been submitted to Justice Alito and by him referred to the Court, the application as presented is denied. The Court furthermore orders: If the applicants ensure that the Secretary of Health and Human Services is in possession of all information necessary to verify applicants’ eligibility under 26 CFR §54.9815-2713A(a) or 29 CFR §2590.715-2713A(a) or 45 CFR §147.131(b) (as applicable), the respondents are enjoined from enforcing against the applicants the challenged provisions of the Patient Protection and Affordable Care Act and related regulations pending final disposition of their petition for certiorari.

Nothing in this interim order affects the ability of the applicants’ or their organizations’ employees to obtain, without cost, the full range of FDA approved contraceptives. Nor does this order preclude the Government from relying on the information provided by the applicants, to the extent it considers it necessary, to facilitate the provision of full contraceptive coverage under the Act. See Wheaton College v. Burwell, 573 U. S. ___ (2014).

This order should not be construed as an expression of the Court’s views on the merits. Ibid.

Justice Sotomayor would deny the application. 

Commentary: Justice Kennedy's Equal Protection Analysis In Obergefell

One of the most interesting and least-commented upon aspects of Justice Kennedy's majority opinion (see prior posting) in Obergefell v. Hodges , last Friday's marriage equality decision, is his treatment of appellants' equal protection arguments.  The traditional approach-- and that used by most lower courts in their same-sex marriage decisions--is to determine the level of scrutiny that should be given to laws that discriminate on the basis of sexual orientation.  Do such classifications deserve "strict" scrutiny, "heightened" scrutiny or does there merely need to be a "rational basis" for use of the classification?  Past Supreme Court decisions on LGBT rights have been particularly opaque on this question.

Early in his opinion, Justice Kennedy laid groundwork that might have been used to flesh out a decision on the appropriate level of scrutiny.  He reviewed the history of discrimination against gays and lesbians-- one of the factors that traditionally figures into a determination of whether heightened scrutiny is called for.  However when he gets to the discussion of equal protection, Justice Kennedy largely ignores that groundwork, mentiioning the history of discrimination only in passing. Instead he treats the equal protection clause as a provision that primarily serves to emphasize the correctness of the fundamental-right-to-marriage conclusion that he has already reached.  That is, unlke most past cases in which substantive due process arguments were made largely to emphasize the severity of the denial of equal protection, here the roles of the two clauses are reversed. Justice Kennedy says in part:

The right of same-sex couples to marry that is part of the liberty promised by the Fourteenth Amendment is derived, too, from that Amendment’s guarantee of the equal protection of the laws.  The Due Process Clause and the Equal Protection Clause are connected in a profound way, though they set forth independent principles. Rights implicit in liberty and rights secured by equal protection may rest on different precepts and are not always coextensive, yet in some instances each may be instructive as to the meaning and reach of the other. In any particular case one Clause may be thought to capture the essence of the right in a more accurate and comprehensive way, even as the two Clauses may converge in the identification and definition of the right....

The Court’s cases touching upon the right to marry reflect this dynamic. In Loving the Court invalidated a prohibition on interracial marriage under both the Equal Protection Clause and the Due Process Clause....

Indeed, in interpreting the Equal Protection Clause, the Court has recognized that new insights and societal understandings can reveal unjustified inequality within our most fundamental institutions that once passed unnoticed and unchallenged....

It is now clear that the challenged laws burden the liberty of same-sex couples, and it must be further acknowledged that they abridge central precepts of equality. Here the marriage laws enforced by the respondents are in essence unequal: same-sex couples are denied all the benefits afforded to opposite-sex couples and are barred from exercising a fundamental right. Especially against a long history of disapproval of their relationships, this denial to same-sex couples of the right to marry works a grave and continuing harm. The imposition of this disability on gays and lesbians serves to disrespect and subordinate them.  And the Equal Protection Clause, like the Due Process Clause, prohibits this unjustified infringement of the fundamental right to marry.

Justice Kennedy thus muddies the water even more as to the test for when discrimination against gays and lesbians, outside the context of marriage, violates the equal protection clause.    He also implicitly suggests that future governmental action burdening in some fashion the right to same-sex marriage should be tested primarily under the due process clause.  Thus if states enact laws permitting business owners with religious objections to refuse to provide goods or services for a same-sex marriage, it would seem that the provision's constitutionality should now be tested not by whether the government has a compelling interest to treat same-sex marriages differently than other marriages, but rather by whether the governmental action places a substantial obstacle or undue burden on the liberty interest of the marriage partners.

The Dissents In Today's Supreme Court Same-Sex Marriage Decision

Following up my earlier posting on Justice Kennedy's majority opinion today in Obergefell v. Hodges (the Supreme Court's decision deciding that states must permit and recognize same-sex marriage), here is a summary of the four dissents:

Chief Justice Roberts dissent (joined by Justices Scalia and Thomas) argued that the majority opinion was a return to the long-rejected judicial policy-making symbolized by the Lochner case:

[T]his Court is not a legislature. Whether same-sex marriage is a good idea should be of no concern to us. Under the Constitution, judges have power to say what the law is, not what it should be. ...

The fundamental right to marry does not include a right to make a State change its definition of marriage. And a State’s decision to maintain the meaning of marriage that has persisted in every culture throughout human history can hardly be called irrational. In short, our Constitution does not enact any one theory of marriage. The people of a State are free to expand marriage to include same-sex couples, or to retain the historic definition....

The majority purports to identify four “principles and traditions” in this Court’s due process precedents that support a fundamental right for same-sex couples to marry.... In reality, however, the majority’s approach has no basis in principle or tradition, except for the unprincipled tradition of judicial policy making that characterized discredited decisions such as Lochner v. New York.... Stripped of its shiny rhetorical gloss, the majority’s argument is that the Due Process Clause gives same-sex couples a fundamental right to marry because it will be good for them and for society....

Emphasizing his central theme, the Chief Justice ended his dissent with the following paragraph:

If you are among the many Americans—of whatever sexual orientation—who favor expanding same-sex marriage, by all means celebrate today’s decision. Celebrate the achievement of a desired goal. Celebrate the opportunity for a new expression of commitment to a partner. Celebrate the availability of new benefits. But do not celebrate the Constitution. It had nothing to do with it.

Justice Scalia's dissent (joined by Justice Thomas) makes a similar point in somewhat more strident language:

Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court. The opinion in these cases is the furthest extension in fact— and the furthest extension one can even imagine—of the Court’s claimed power to create “liberties” that the Constitution and its Amendments neglect to mention. This practice of constitutional revision by an unelected committee of nine, always accompanied (as it is today) by extravagant praise of liberty, robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves. ...

But what really astounds is the hubris reflected in today’s judicial Putsch. The five Justices who compose today’s majority are entirely comfortable concluding that every State violated the Constitution for all of the 135 years between the Fourteenth Amendment’s ratification and Massachusetts’ permitting of same-sex marriages in 2003.

In making his point, Justice Scalia pointed out the unrepresentative character of the Supreme Court:

nine men and women, all of them successful lawyers who studied at Harvard or Yale Law School. Four of the nine are natives of New York City. Eight of them grew up in east- and west-coast States. Only one hails from the vast expanse in-between. Not a single Southwesterner or even, to tell the truth, a genuine Westerner (California does not count). Not a single evangelical Christian (a group that comprises about one quarter of Americans), or even a Protestant of any denomination.

Justice Thomas' dissent (joined by Justice Scalia) included a lengthy historical critique of the majority's understanding of the term "liberty" in the due process clause, saying in part:

Since well before 1787, liberty has been understood as freedom from government action, not entitlement to government benefits. The Framers created our Constitution to preserve that understanding of liberty. Yet the majority invokes our Constitution in the name of a “liberty” that the Framers would not have recognized, to the detriment of the liberty they sought to protect. Along the way, it rejects the idea—captured in our Declaration of Independence—that human dignity is innate and suggests instead that it comes from the Government. This distortion of our Constitution not only ignores the text, it inverts the relationship between the individual and the state in our Republic. I cannot agree with it. 

Justice Alito's dissent (which Justices Scalia and Thomas joined) included a more direct discussion than did the other opinions of the position of those who continue to oppose same-sex marriage:

Perhaps recognizing how its reasoning may be used, the majority attempts, toward the end of its opinion, to reassure those who oppose same-sex marriage that their rights of conscience will be protected.... We will soon see whether this proves to be true. I assume that those who cling to old beliefs will be able to whisper their thoughts in the recesses of their homes, but if they repeat those views in public, they will risk being labeled as bigots and treated as such by governments, employers, and schools.

.... If the issue of same-sex marriage had been left to the people of the States, it is likely that some States would recognize same-sex marriage and others would not. It is also possible that some States would tie recognition to protection for conscience rights. The majority today makes that impossible. By imposing its own views on the entire country, the majority facilitates the marginalization of the many Americans who have traditional ideas. Recalling the harsh treatment of gays and lesbians in the past, some may think that turnabout is fair play. But if that sentiment prevails, the Nation will experience bitter and lasting wounds.

Supreme Court Says States Must License and Recognize Same-Sex Marriage-- A Review of Justice Kennedy's Majority Opinion

Today in Obergefell v. Hodges, (Sup. Ct., June 26, 2015), in a 5-4 decision the U.S. Supreme Court held that the 14th Amendment's due process and equal protection clauses require states to license same-sex marriages and to recognize same-sex marriages lawfully licensed and performed in other states. Justice Kennedy wrote a rather tightly reasoned majority opinion which was joined by Justices Ginsberg, Breyer, Sotomayor and Kagan.  He began by tracing changes in the concept of marriage that have occurred over time, saying in part:

There are untold references to the beauty of marriage in religious and philosophical texts spanning time, cultures, and faiths, as well as in art and literature in all their forms. It is fair and necessary to say these references were based on the understanding that marriage is a union between two persons of the opposite sex. That history is the beginning of these cases. The respondents say it should be the end as well. To them, it would demean a timeless institution if the concept and lawful status of marriage were extended to two persons of the same sex.... 

The petitioners acknowledge this history but contend that these cases cannot end there.... Far from seeking to devalue marriage, the petitioners seek it for themselves because of their respect—and need—for its privileges and responsibilities. And their immutable nature dictates that same-sex marriage is their only real path to this profound commitment....

The history of marriage is one of both continuity and change.... For example, marriage was once viewed as an arrangement by the couple’s parents based on political, religious, and financial concerns; but by the time of the Nation’s founding it was understood to be a voluntary contract between a man and a woman.... As the role and status of women changed, the institution further evolved. Under the centuries-old doctrine of coverture, a married man and woman were treated by the State as a single, male-dominated legal entity....  As women gained legal, political, and property rights, and as society began to understand that women have their own equal dignity, the law of coverture was abandoned.... 

[T]he Court has long held the right to marry is protected by the Constitution... It cannot be denied that this Court’s cases describing the right to marry presumed a relationship involving opposite-sex partners. The Court, like many institutions, has made assumptions defined by the world and time of which it is a part.... In defining the right to marry these cases have identified essential attributes of that right based in history, tradition, and other constitutional liberties inherent in this intimate bond.... The four principles and traditions to be discussed demonstrate that the reasons marriage is fundamental under the Constitution apply with equal force to same-sex couples.

A first premise of the Court’s relevant precedents is that the right to personal choice regarding marriage is inherent in the concept of individual autonomy.... A second principle in this Court’s jurisprudence is that the right to marry is fundamental because it supports a two-person union unlike any other in its importance to the committed individuals. ... A third basis for protecting the right to marry is that it safeguards children and families and thus draws meaning from related rights of childrearing, procreation, and education.... Fourth and finally, this Court’s cases and the Nation’s traditions make clear that marriage is a keystone of our social order ...

Justice Kennedy expanded on the third of these premises:

Excluding same-sex couples from marriage thus conflicts with a central premise of the right to marry. Without the recognition, stability, and predictability marriage offers, their children suffer the stigma of knowing their families are somehow lesser. They also suffer the significant material costs of being raised by unmarried parents, relegated through no fault of their own to a more difficult and uncertain family life. The marriage laws at issue here thus harm and humiliate the children of same-sex couples. ...

Justice Kennedy went on:

[B]y virtue of their exclusion from that institution, same-sex couples are denied the constellation of benefits that the States have linked to marriage. This harm results in more than just material burdens. Same-sex couples are consigned to an instability many opposite-sex couples would deem intolerable in their own lives. As the State itself makes marriage all the more precious by the significance it attaches to it, exclusion from that status has the effect of teaching that gays and lesbians are unequal in important respects. It demeans gays and lesbians for the State to lock them out of a central institution of the Nation’s society.... 

Many who deem same-sex marriage to be wrong reach that conclusion based on decent and honorable religious or philosophical premises, and neither they nor their beliefs are disparaged here. But when that sincere, personal opposition becomes enacted law and public policy, the necessary consequence is to put the imprimatur of the State itself on an exclusion that soon demeans or stigmatizes those whose own liberty is then denied....

The right of same-sex couples to marry that is part of the liberty promised by the Fourteenth Amendment is derived, too, from that Amendment’s guarantee of the equal protection of the laws. The Due Process Clause and the Equal Protection Clause are connected in a profound way, though they set forth independent principles. Rights implicit in liberty and rights secured by equal protection may rest on different precepts and are not always coextensive, yet in some instances each may be instructive as to the meaning and reach of the other.... Especially against a long history of disapproval of their relationships, this denial to same-sex couples of the right to marry works a grave and continuing harm. The imposition of this disability on gays and lesbians serves to disrespect and subordinate them. And the Equal Protection Clause, like the Due Process Clause, prohibits this unjustified infringement of the fundamental right to marry....

Justice Kennedy then addressed the concerns of those who oppose same-sex marriage on religious grounds:

Finally, it must be emphasized that religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned. The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered. The same is true of those who oppose same-sex marriage for other reasons. In turn, those who believe allowing same-sex marriage is proper or indeed essential, whether as a matter of religious conviction or secular belief, may engage those who disagree with their view in an open and searching debate. The Constitution, however, does not permit the State to bar same-sex couples from marriage on the same terms as accorded to couples of the opposite sex.

Each of the 4 dissenting justices filed a separate dissent.  A later posting will review those.  UPDATE: Here is a posting summarizing the dissents.

Supreme Court Holds Fair Housing Act Supports Disparate-Impact Claims

Today in a 5-4 decision in Texas Department of Housing and Community Affairs v. Inclusive Communities Project, Inc., (Sup. Ct., June 25, 2015), the U.S. Supreme Court held that disparate-impact claims, not just intentional discrimination claims, are cognizable under the federal Fair Housing Act.  In an opinion by Justice Kennedy, joined by Justices Ginsberg, Breyer, Sotomayor and Kagan, the court held that while the statute which bars discrimination in the sale or rental of housing because of race, color, religion, sex, handicap, familial status, or national origin supports challenges to policies that cause racial or other disparities, there are significant limitations on such claims, saying:

If the specter of disparate-impact litigation causes private developers to no longer construct or renovate housing units for low-income individuals, then the FHA would have undermined its own purpose as well as the free-market system.

Justice Kennedy went on for 5 pages discussing the required safeguards against inappropriate disparate-impact claims, saying in part:

An important and appropriate means of ensuring that disparate-impact liability is properly limited is to give housing authorities and private developers leeway to state and explain the valid interest served by their policies. This step of the analysis is analogous to the business necessity standard under Title VII and provides a defense against disparate-impact liability....

It would be paradoxical to construe the FHA to impose onerous costs on actors who encourage revitalizing dilapidated housing in our Nation’s cities merely because some other priority might seem preferable. Entrepreneurs must be given latitude to consider market factors. Zoning officials, moreover, must often make decisions based on a mix of factors.... The FHA does not decree a particular vision of urban development; and it does not put housing authorities and private developers in a double bind of liability, subject to suit whether they choose to rejuvenate a city core or to promote new low-income housing in suburban communities.

Justice Alito wrote a dissenting opinon joined by Chief Justice Roberts and Justices Scalia and Thomas.  Justice Thomas also filed a separate dissent.

Cert. Granted In Prisoner IFP Litigation Fee Case

The U.S. Supreme Court today granted certiorari in Bruce v. Samuels, (Docket No. 14-844, cert. granted 6/15/2015) (Order List), a case that is important for prisoner litigation over religious accommodations-- cases that are often brought by prisoners in forma pauperis. At issue is the interpretation of a provision in the Prison Litigation Reform Act that caps monthly payments by prisoners proceeding in forma pauperis at 20% (28 USC 1915(b)(2)).  At issue in the case is whether a prisoner who files multiple cases or appeals has his monthly payment capped at 20% of his total income, or whether he must pay 20% of his income each month for each pending case. The Circuits are split on the issue.  In the decision below (full text), the D.C. Circuit chose the per-case approach. The SCOTUS blog case page for the case is here.

Supreme Court GVR's Title VII Nursing Home Case After Abercrombie

Yesterday the U.S. Supreme Court remanded for reconsideration an employment discrimination case whose result may be impacted by the court's recent decision in EEOC v. Abercrombie & Fitch Stores.  In Norbach v. Woodland Village Nursing Center, Inc., (Sup. Ct. June 8, 2015), (order list). the Supreme Court granted certiorari, summarily vacated the 5th Circuit's judgment and remanded.  In the case, the 5th Circuit had dismissed a Title VII religious discrimination suit brought by a nursing home activities aide who was fired by the nursing home after she refused to pray the Rosary with a patient.  The court held that no evidence had been presented to the jury showing that the employer knew or reasonably should have known that her refusal was based on the aide's Jehovah's Witness religious beliefs. (See prior posting.)

Supreme Court Says Congress Overstepped Its Power In Enacting Jerusalem Passport Designation Law

Today the U.S. Supreme Court in Zivtofsky v. Kerry, (Sup. Ct., June 8, 2015), held 6-3 that Congress infringed on the President's power to recognize foreign countries when it enacted a law giving U.S. citizens born in Jerusalem the right to have "Israel" rather than Jerusalem listed in their passports as their place of birth. The majority, in an opinion by Justice Kennedy, held that the statute infringes the President's exclusive power to recognize foreign governments, saying in part:

Although the statement required by §214(d) would not itself constitute a formal act of recognition, it is a mandate that the Executive contradict his prior recognition determination in an official document issued by the Secretary of State.... As a result, it is unconstitutional. This is all the more clear in light of the longstanding treatment of a passport’s place-of-birth section as an official executive statement implicating recognition.

Justice Breyer filed a concurring opinion in which he said that he also believed that this posed a political question inappropriate for judicial resolution. Justice Thomas concurred in part and dissented in part, arguing that the statute "can be constitutionally applied to consular reports of birth abroad, but not passports."

Chief Justice Roberts, joined by Justice Alito, dissented arguing that the statute does not implicate the President's power to recognize foreign governments.  Chief Justice Roberts and Justice Alito also joined a dissent filed by Justice Scalia which argues that: "Under the Constitution ... Congress may require Zivotofsky’s passport and birth report to record his birthplace as Israel, even if that requirement clashes with the President’s preference for neutrality about the status of Jerusalem."

JTA points out that the three Jewish justices joined Kennedy's majority opinion. Times of Israel carries the reaction of various Israeli officials to the decision.

Cert Petition Filed In Family Dispute Over Repatriation of Athlete Jim Thorpe's Remains To Tribal Cemetery

Yesterday a petition for certiorari (full text) was filed with the U.S. Supreme Court in Sac and Fox Nation of Oklahoma v. Borough of Jim Thorpe.  In the case, the U.S. 3rd Circuit Court of Appeals in a 2014 decision (full text) held that despite its literal language, Congress did not intend the Native American Graves Protection and Repatriation Act (NAGPRA) to apply to a dispute between the sons of famous Native American Athlete Jim Thorpe who died in 1953 and the Pennsylvania town that renamed itself after Thorpe in an agreement with Thorpe's widow (his third wife) to have his remains buried there. Some of Thorpe's children from prior marriages have insisted that his remains be moved to Sac and Fox tribal land in Oklahoma. Wall Street Journal's Law Blog reports on the cert. petition.

Supreme Court Interprets Indigent Prisoner Litigation Statute

The U.S. Supreme Court today in Coleman v. Tollefson, (Sup. Ct., May 18, 2015), gave a literal interpretation to the "three strikes" provision of 28 USC Sec. 1915(g) that restricts the ability of inmates to bring multiple challenges to prison conditions without paying the required filing fees.  The section, which qualifies the right of indigent inmates to file federal lawsuits in forma pauperis, provides:

In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury.

In an opinion by Justice Breyer, the Court held unanimously that a dismissal which is under appeal still counts as one of the "three strikes" to prevent an additional lawsuit from being filed.  The Court left open the question of whether this interpretation also would preclude an appeal of a trial court decision that was itself the third strike. Today's decision upholds the view of the 6th Circuit below, and rejects a contrary interpretation by a number of other Circuits.  The decision will particularly impact inmates seeking religious accommodations from prison systems, since these cases rarely if ever will fall within the "imminent danger of serious physical injury" exception.

A Bit of Humor On A Serious Topic...

For those who have been promising themselves that they will listen to the full Supreme Court oral arguments in Obergefell v. Hodges, the same-sex marriage cases argued last week, but have not gotten around to it, the task has now perhaps become more inviting with the posting on YouTube of the arguments synchronized with John Oliver dog clips:

Cert Denied In Challenge To New Jersey's Reparative Therapy Ban

Yesterday the U.S. Supreme Court denied review in King v. Christie, (Docket No. 14-672, cert. denied 5/4/2015) (Order List).  In the case, the 3rd Circuit upheld against 1st Amendment challenges New Jersey's statute barring professional counselors from engaging in sexual orientation change therapy with minors. (See prior posting.)  The Hill reports on the Supreme Court's denial of certiorari.

Supreme Court Says Required Conciliation Is Reviewable Prerequisite To EEOC Title VII Lawsuit

Yesterday in Mach Mining LLC v. Equal Employment Opportunity Commission, (Sup. Ct., April 29, 2015), the U.S. Supreme Court held that the requirement in Title VII of the 1964 Civil Rights Act that the EEOC attempt conciliation before filing an employment discrimination lawsuit is a judicially enforceable prerequisite to suing. However the scope of review of whether the EEOC has met this requirement is narrow:

the EEOC must inform the employer about the specific allegation.... Such notice properly describes both what the employer has done and which employees ... have suffered as a result. And the EEOC must try to engage the employer in some form of discussion (whether written or oral), so as to give the employer an opportunity to remedy the allegedly discriminatory practice. Judicial review of those requirements (and nothing else) ensures that the Commission complies with the statute. At the same time, that relatively barebones review allows the EEOC to exercise all the expansive discretion Title VII gives it to decide how to conduct conciliation efforts and when to end them.

The Court's unanimous opinion was written by Justice Kagan.  Wall Street Journal reported on the decision.