Supreme Court GVR's Title VII Reasonable Accommodation Appeal

Yesterday in Hedican v. Walmart Stores East, (Docket No. 21-648, gvr'd 3/21/2022), (Order List), the U.S. Supreme Court granted certiorari, summarily vacated the judgment below and remanded the case to the Seventh Circuit for further consideration in light of Cameron v. EMW Women’s Surgical Center. In the Walmart case, the 7th Circuit held that accommodating the scheduling need of a Seventh Day Adventist would impose an undue burden on Walmart. After that decision, Edward Hedican, on whose behalf the EEOC had sued, sought to intervene in order to file a petition for certiorari. The Seventh Circuit held that the motion to intervene was untimely. Hedican's petition for certiorari said that it presents identical questions to Cameron.

ABC Surveys Religious Views Of SCOTUS Nominee Jackson

 ABC News features an article surveying what is known about Supreme Court nominee Ketanji Brown Jackson's religious beliefs. ABC points to religious references in two speeches out of 2000 pages of documents and one year of service on an advisory board of Montrose Christian School where Jackson focused mainly on fundraising.  ABC reports:

Friends and former colleagues close to Jackson have described her religious practice as private and deeply personal, neither a frequent topic of conversation nor an overly outward display. She identifies as a Protestant Christian, one Jackson associate, who asked to speak anonymously due to sensitivity of the matter, told ABC News.

Pentagon Asks Supreme Court To Stay Injunction Obtained By Navy SEALS Who Object To Vaccines

 Yesterday in Austin v. U.S. Navy Seals 1-26 the Pentagon filed with the Supreme Court an Application (full text) for a stay while appeals are pending of an injunction issued by a Texas federal district court. In the case, the district court issued a preliminary injunction barring the Navy from imposing its COVID vaccine mandate on 35 Navy service members who have religious objections to the vaccines. (See prior posting.) The  Pentagon sought a stay of the injunction from the 5th Circuit insofar as it precludes the Navy from considering vaccination status in making deployment, assignment, and other operational decisions. The 5th Circuit refused to grant the stay. (See prior posting.)  In its Application to the Supreme Court, the Pentagon contends in part:

[E]ven if respondents’ claims had merit, respondents would not be entitled to an injunction dictating the Navy’s deployment, assignment, and operational decisions.... An injunction that trenches on core Article II prerogatives concerning which military servicemembers are qualified for which missions  ... has no precedent in our Nation’s history.

The Application was filed with Justice Alito who called for appellees to respond by March 14. SCOTUSblog reports on the filing.

Supreme Court In Muslim Surveillance Case Says State Secrets Doctrine Survives FISA

The U.S. Supreme Court today, in a unanimous opinion written by Justice Alito issued a narrow decision in Federal Bureau of Investigation v. Fazaga, (Sup. Ct., March 4, 2022). The case involves a class action lawsuit filed by Muslims in California who claim they were subjected to illegal surveillance. The district court dismissed the suit under the "state secrets" doctrine.  The 9th Circuit reversed holding that FISA displaced the state secrets doctrine. The Supreme Court held that FISA does not displace the state secrets doctrine, but did not resolve the parties disagreement about the interpretation of the relevant portion of FISA, nor did it decide whether the district court was correct in dismissing the suit on the pleadings. Deseret News reports on the decision.

Supreme Court Allows New Kentucky AG To Intervene To Defend Abortion Restrictions

Yesterday in Cameron v. EMW Women's Surgical Center, (Sup. Ct., March 3, 2022), the U.S. Supreme Court by an 8-1 vote ruled that the newly-elected Kentucky Attorney General (a Republican) should have been allowed to intervene to defend a Kentucky statute that banned D&E abortions prior to fetal demise. The newly elected Democratic governor (through a cabinet official) had agreed not to pursue appeals of the 6th Circuit's decision holding the law unconstitutional. Justice Alito wrote the opinion for the Court. Justice Thomas filed a concurring opinion. Justice Kagan, joined by Justice Breyer, concurred in the judgment, writing an opinion that reached the same conclusion as the majority, but through a different rationale. Only Justice Sotomayor dissented. CNN reports on the decision.

Cert. Denied In Ministerial Exception Case, With 4 Justices Expressing Concerns

The U.S. Supreme Court today denied review in Gordon College v. DeWeese-Boyd, (Docket No. 21-145, certiorari denied 2/28/2022) (Order List).  In the case, the Massachusetts Supreme Judicial Court held that the ministerial exception does not apply in a suit by an associate professor of social work at a private Christian liberal arts college who claims her promotion to full professor was denied because of her vocal opposition to the school's policies on LGBTQ individuals. (See prior posting.) Justice Alito, joined by Justices Thomas, Kavanaugh and Barrett, filed an opinion (full text) concurring in the denial of certiorari, but expressing concern with the lower court's decision, saying in part:

The Supreme Judicial Court of Massachusetts held that this “ministerial exception” did not apply to a professor at a religious college who “did not teach religion or religious texts,” but who was still expected to “integrate her Christian faith into her teaching and scholarship.” ...  Although the state court’s understanding of religious education is troubling, I concur in the denial of the petition for a writ of certiorari because the preliminary posture of the litigation would complicate our review. But in an appropriate future case, this Court may be required to resolve this important question of religious liberty....

What many faiths conceive of as “religious education” includes much more than instruction in explicitly religious doctrine or theology.... [M]any religious schools ask their teachers to “show students how to view the world through a faith-based lens,” even when teaching nominally secular subjects.

Jackson Chosen By Biden For Supreme Court: Little Record On Religion Issues

President Biden has announced that he will nominate D.C. Circuit Judge Ketanji Brown Jackson to succeed Justice Breyer on the U.S. Supreme Court. She was a former clerk for Breyer.  Jackson has very little public record on church-state and free exercise issues.  I have been able to locate only one religion case (a Title VII case) in which she has written an opinion as either federal district or circuit court judge: Tyson v. Brennan, 306 F.Supp. 365) (D DC, Sept. 27, 2017).  It appears that the most extensive indication of her views on the religion clauses are found in her Responses to Questions for the Record in connection with her nomination to the D.C. Circuit (at pages 16, 18, 26, 27, 28, 35, 41, 49, 58, 63, 73, 74). There appears to be no reliable information available about Jackson's own religious affiliation.  Americans United for Separation of Church and State has issued a statement supporting her nomination.

Certiorari Denied In Challenge To Maine COVID Vaccine Mandate

Yesterday the U.S. Supreme Court denied review in Does 1-3 v. Mills, (Docket No. 21-717, certiorari denied, 2/22/2022) (Order List). At issue in the case is whether Maine's COVID vaccine mandate for healthcare workers, without the availability of religious exemptions, violates the Free Exercise clause. (See prior posting.) LifeNews reports on the denial of certiorarai.

Supreme Court Grants Review In Case Of Website Designer Who Refuses Same-Sex Wedding Customers

The U.S. Supreme Court today granted review in 303 Creative LLC v. Elenis, (certiorari granted, 2/22/2022) (order List). The grant of certiorari was limited to 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."  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. It said that the 1st Amendment allows the state to ban speech that promotes unlawful conduct, including unlawful discrimination. (See prior posting.) Here is the SCOTUSblog case page with links to briefs in the case.

Supreme Court Denies Injunction As School System Postpones Vaccine Mandate

In Doe v. San Diego School District, (Sup. Ct., Feb. 18, 2022), the U.S. Supreme Court issued an Order (full text) refusing to enjoin a school district's COVID vaccine mandate that does not provide for religious exemptions.  The Court said in part:

Because respondents have delayed implementation of the challenged policy, and because they have not settled on the form any policy will now take, emergency relief is not warranted at this time. Applicants’ alternative request for a writ of certiorari before judgment and a stay pending resolution is denied for the same reason. The Court’s denial is without prejudice to applicants seeking a new injunction if circumstances warrant.

As a press release from the Thomas More Society relates, the suit was brought by a student athlete whose religious beliefs prevent her from taking the current vaccines because of the use of fetal cells in their development.

NYC Teachers, Seeking Religious Exemptions, Resubmit Injunction Request To Justice Gorsuch

As previously reported, last week in Keil v. City of New York, Justice Sotomayor Acting on an Emergency Application to the U.S. Supreme Court filed by a group of New York City teachers, refused to enjoin the dismissal of teachers with religious objections who refused to comply with the City's COVID vaccine mandate. Invoking Supreme Court Rule 22.4, the teachers on Feb. 14 requested that their petition be resubmitted, this time to Justice Gorsuch. (Full text  of request letter). Justice Gorsuch has referred the request to the full Court for their March 4 conference. The Second Circuit which refused to grant an injunction pending appeal has already scheduled a hearing on the merits of the teachers' claims for Feb. 24.  CNN reports on these developments. [Thanks to Scott Mange for the lead.]

Free Exercise Challenges To OSHA Vaccine Mandate Dismissed By Supreme Court In Light Of NFIB Decision

 As has been widely reported, earlier this month in National Federation of Independent Business v. OSHA, (Sup. Ct., Jan. 13, 2022), the Supreme Court held that OSHA exceeded its statutory authority in ordering vaccination of employees in all businesses with more than 100 employees.  Today, the Supreme Court dismissed 13 cases in which the same OSHA regulation was challenged. (Order List). Among those dismissed were two cases brought by religious institutions that raised specific religious freedom objections to the vaccine mandate: Southern Baptist Theological Seminary v. OSHA, (Docket No. 21A246, dismissed 1/24/2022) and Word of God Fellowship, Inc. v. OSHA, (Docket No. 21A250, dismissed 1/24/2022). More details of the challenges in those two cases are discussed in this prior posting.

Supreme Court Assures Further Delay In Challenge To Texas Heartbeat Abortion Law

Yesterday, in In re Whole Woman's Health, (Sup.Ct., Jan. 20, 2022),  the U.S. Supreme Court in a brief Order refused to issue a writ of mandamus requested by Texas abortion providers who are seeking a speedy adjudication of the constitutionality of Texas SB8, the state's "heartbeat" abortion law that essentially bans almost all abortions after six weeks of pregnancy.  Courts, including the Supreme Court, have refused to enjoin enforcement of the Texas law while its constitutionality is being litigated. Earlier this week, the 5th Circuit assured further delay by certifying a state law issue in the case to the Texas Supreme Court instead of remanding the case to the Texas federal district court for it to act on the constitutional question. (See prior posting.) Yesterday, Justice Breyer filed a dissenting opinion that was joined by Justices Sotomayor and Kagan, and Justice Sotomayor filed a dissenting opinion joined by Justices Breyer and Kagan, objecting to the Court's denial of mandamus.  Justice Sotomayor said in part:

Today’s decision shows that any hope that Whole Woman’s Health II might protect the Constitution’s guarantees in this case was illusory. As it turns out, Texas did not even have to amend its law to sidestep the minimal relief this Court left available. Instead, Texas wagered that this Court did not mean what little it said in Whole Woman’s Health II or, at least, that this Court would not stand behind those words, meager as they were. That bet has paid off.... [This Court] accepts yet another dilatory tactic by Texas.... 

This case is a disaster for the rule of law and a grave disservice to women in Texas, who have a right to control their own bodies. I will not stand by silently as a State continues to nullify this constitutional guarantee.

Texas Tribune reports on the decision.

5th Circuit Certifies Texas Heartbeat Abortion Case To Texas Supreme Court

In Whole Woman's Health v. Jackson, (5th Cir., Jan. 17, 2022), the U.S. 5th Circuit Court of Appeals, in a 2-1 decision, certified to the Texas Supreme Court the question of whether under Texas law, any state officials have authority to take disciplinary action against doctors who violate Texas' Heartbeat Act.  The Act bans abortions if the physician has detected a fetal heartbeat-- usually at around 6 weeks of a pregnancy. The case is on remand from the U.S. Supreme Court (see prior posting), which has previously refused to enjoin enforcement of the Texas law while appeals are under way. (See prior posting.) The ability of Texas state officials to enforce the law in some way was crucial to the Supreme Court's decision that abortion providers could sue the state in a challenge to the law. (See prior posting.)  Judge Higginson dissented from the 5th Circuit's decision to certify the question to the Texas Supreme Court, saying in part:

By granting the defendants’ certification motion, we contravene the Supreme Court’s mandate, effectively telling the Court that its opinion was advisory.

Yahoo News reports on the 5th Circuit's decision.

Certiorari Denied In Virginia Ministerial Residence Tax Exemption Dispute

The U.S. Supreme Court today denied review in Trustees of New Life In Christ Church v. City of Fredericksburg, Virginia,  (certiorari  denied, 1/18/2022), over the dissenting opinion of Justice Gorsuch. In the case, a Virginia state court denied the state's "ministerial residence" tax exemption to a local Presbyterian church because the Youth Ministers living in the home at issue were not ordained clergy and were not listed by the church as one of its primary pastors. (See prior related posting.) The city claimed that this meant they did not qualify as "ministers" under the Presbyterian Church's Book of Church Order, despite the local church's insistence that they do qualify.  Justice Gorsuch, in his opinion dissenting from the denial of certiorari, said in part:

[T]he City continues to insist that a church’s religious rules are “subject to verification” by government officials....

I would grant the petition and summarily reverse. The First Amendment does not permit bureaucrats or judges to “subject” religious beliefs “to verification.”...

This case may be a small one, and one can hope that the error here is so obvious it is unlikely to be repeated anytime soon. But I would correct it....

Courthouse News Service reports on the case.

Court Will Hear Arguments Today In "Christian Flag" Case

The U.S. Supreme Court this morning will hear oral arguments in Shurtleff v. City of Boston. In the case, the U.S. 1st Circuit Court of Appeals, applying the "government speech" doctrine, upheld Boston's refusal to allow an organization to raise its "Christian flag" on one of the City Hall Plaza flag poles at an event that would also feature short speeches by local clergy. (See prior posting.) (The flag features a red Latin Cross on a blue background in the upper left portion of an otherwise blank white flag.)  The SCOTUSblog case page has links to amicus briefs, briefs of the parties and other filings in the case. The oral arguments, which begin at 10:00 am EST, will be broadcast live at this link.  When the transcript and recording of the arguments become available later today, I will update this post to link to them.

UPDATE: Here are links to the transcript and audio of today's arguments.

Supreme Court Grants Review In Case Of Football Coach's Praying At 50-Yard Line

Yesterday the U.S. Supreme Court granted certiorari in Kennedy v. Bremerton School District, (Docket No. 21-418, cert. granted, 1/14/2022). (Order List.)  In the widely followed case, the U.S. 9th Circuit Court of Appeals upheld a high school's actions against a football coach who insisted on prominently praying at the 50-yard line immediately after football games. The coach was placed on paid administrative leave and given negative performance reviews. He did not reapply to coach the following year. A divided 9th Circuit denied en banc review. (See prior posting.) SCOTUS blog reports on the Supreme Court's grant of review. [Corrected. An earlier version of this post inaccurately stated that the coach was "fired".]

Christian Organizations Ask Supreme Court To Stay OSHA Private-Employer Vaccine Mandate

Last Friday, in a 2-1 decision in In re: MCP No. 165, Occupational Safety & Health Admin. Rule on COVID-19 Vaccination and Testing, (6th Cir., Dec. 17, 2021), the U.S. 6th Circuit Court of Appeals dissolved a stay of OSHA's Emergency Temporary Standard that calls for employers of of 100 or more persons to require either COVID vaccination of employees or weekly testing (and masks) for unvaccinated workers. Challenges in some three dozen cases had been consolidated in the 6th Circuit which then had authority to modify or dissolve the prior stay issued by the 5th Circuit. 

Among the consolidated cases was one brought by a number of Christian schools, colleges and organizations that were subject to the rule. They quickly filed an Emergency Application with the U.S. Supreme Court asking for a stay pending appeal of the 6th Circuit's decision. The Application (full text) in Southern Baptist Theological Seminary v. OSHA, (Sup. Ct., filed 12/17/2021) argues:

OSHA lacks jurisdiction to regulate religious non-profit institutions, because they are not “employers” under the OSH Act.

It goes on to contend that the OSHA rule also violates Applicants' religious freedom rights under RFRA and the 1st Amendment, saying in part:

OSHA “commandeers” Religious Institutions “to compel [their] employees” to comply with the mandate.... To ensure compliance, Religious Institutions must probe their ministers’ and employees’ intimate and personal medical decisions that often implicate their religious beliefs. This is precisely the “secular control or manipulation” that the First Amendment prohibits.... In addition, the mandate violates the First Amendment by setting the “terms and conditions of employment” to work for Religious Institutions ... and interfering with their ability to “select[] ... the individuals who play certain key roles”....

Religious Institutions exercise their faith by providing seminary training, providing Catholic and Christian education, engaging in nonprofit ministries, and operating for-profit businesses according to Christian values. The Mandate will force Religious Institutions to take faculty out of classrooms, and staff out of operating these organizations and businesses—for testing on a weekly basis or for non-compliance—which will significantly disrupt Religious Institutions’ mission, including for-profit businesses’ operations and exercise.... This burden is substantial—not mere inconvenience—because Religious Institutions’ employees are not fungible.

ADF issued a press release announcing the filing of the Emergency Application. SCOTUblog discusses the filing.

A second Emergency Application was filed by a different group of Christian organizations.  The Application (full text) in Word of God Fellowship, Inc. v. OSHA, (Sup. Ct., filed 12/19/2021) contends in part:

... [T]he violation of the Ministries’ religious faiths is not cured by the provisions of the ETS and Title VII that provide them with discretion to grant religious accommodations to their employees.... The Ministries cannot put their employees to the test by requiring them to seek religious accommodations for the government-imposed vaccine mandate.... In other words, even asking their employees to make a decision of religious conscience about the vaccine mandate causes the Ministries to engage in what they believe is sin. Moreover, the mask requirement for unvaccinated employees also burdens the Ministries’ religious beliefs, because they believe that OSHA’s requirement that they mask unvaccinated employees would forcibly identify those who are unvaccinated and cause division within their organizations.... The Ministries believe they have a Biblical duty to promote unity within their organizations.

Axios reports on this filing.

More Delays Likely Ahead In Challenge To Texas "Heartbeat" Abortion Law

The procedural complexities in Whole Woman's Health v. Jackson-- the challenge by abortion providers to Texas' "heartbeat" abortion ban-- have increased as Justice Gorsuch yesterday granted challenger's request to issue a certified copy of the judgment immediately rather than in the normal 25-day time frame.  However Gorsuch remanded the case to the 5th Circuit, rather than to the district court. National Law Journal explains the implications of this action:

In its opposition, Texas Solicitor General Judd Stone argued that the justices’ holding that the four licensing officials could be sued “turned on its tentative resolution of a question of Texas Law, and ‘Texas courts and not [the Supreme Court] are the final arbiters of the meaning of state statutory directions.’” A remand to the district court, he argued, would prevent the four officials from asking the appellate court to certify the state law question of the officials’ enforcement authority to the Texas Supreme Court.

If Texas does indeed ask the appellate court to certify that question to the Texas Supreme Court, resolution of the constitutional challenge to the law will be delayed indefinitely.

Arizona Asks Supreme Court To Lift, Pending Appeal, Injunction Against Its Genetic-Abnormality Abortion Ban

A petition was filed yesterday with the U.S. Supreme Court seeking a partial stay of a district court injunction that prevents enforcement of Arizona's ban on genetic-abnormality-selective abortions. (See prior posting). The petition (full text) in Brnovich v. Isaacson was filed after the 9th Circuit refused to stay the injunction pending appeal. The petition seeks an injunction while appeals work their way through the appellate courts. SCOTUSblog reports on the Supreme Court filing.