Supreme Court Denies Cert. In Two Ministerial Exception Cases

The U.S. Supreme Court yesterday denied review in two cases which held that interlocutory appeals from denial of a ministerial exception defense are not allowed. (Order List).

Faith Bible Chapel International v. Tucker, (Docket No. 22-741, certiorari denied 6/12/2023), involves a former high school teacher and administrator/ chaplain who contends that he was fired for opposing alleged racial discrimination by a Christian school. In the case, the 10th Circuit denied en banc review. (See prior posting).

Synod of Bishops v. Belya, (Docket No. 22-824, certiorari denied 6/12/2023) involves a suit in which plaintiff contends that he was defamed when defendants publicly accused him of forging a series of letters regarding his appointment as Bishop of Miami in the Russian Orthodox Church Outside Russia. In the case, the 2nd Circuit denied en banc review. (See prior posting).

Supreme Court Denies Cert. In Challenge to Indiana Fetal Remains Law

The U.S. Supreme Court on Monday denied review in Jane Doe No. 1 v. Rokita, (Docket No. 22-951, certiorari denied 5/1/2023) (Order List). In the case, the U.S. 7th Circuit Court of Appeals rejected 1st Amendment challenges to an Indiana statute that requires abortion providers to dispose of fetal remains either by burial or by cremation. (See prior posting.) The case Docket with links to filings in the Supreme Court is here.  AP reports on the Court's action.

Supreme Court Stays District Court's Order That Invalidated FDA's Approval of Abortion Pill

The U.S. Supreme Court yesterday evening in Danco Laboratories, LLC v. Alliance for Hippocratic Medicine, (Sup. Ct., April 21, 2023), and in a companion case in which the FDA was a party, granted stays of a Texas federal district court's order that had found the FDA's approval of the abortion drug mifepristone to be invalid. The stays will remain in effect while appeals work their way through the courts. Justice Thomas indicated that he would have denied the applications for stays.  Justice Alito filed an opinion dissenting from the grant of the stays, saying that the applicants have not shown that they would suffer irreparable harm if the stays were not granted. SCOTUSblog has additional reporting on the Supreme Court's action.

Additional Administrative Stay Issued By Supreme Court In Abortion Pill Case

U.S. Supreme Court Justice Samuel Alito today (April 19) in Food & Drug Administration v. Alliance for Hippocratic Medicine issued an Order (full text) extending the Court's April 14 administrative stay until Friday April 21. At issue is a Texas federal district court's decision invalidating the FDA's approval of the abortion drug mifepristone. Previously the Supreme Court had stayed the district court's order only until today. (See prior posting.) CNBC reports on Justice Alito's action.

Supreme Court Hears Oral Arguments Today In Title VII Religious Accommodation Case

The U.S. Supreme Court will hear oral arguments today in Groff v. DeJoy, an important religious liberty case testing the extent to which Title VII requires accommodation of employees' religious practices. 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 "more than de minimis" test for "undue hardship" announced in TWA v. Hardison. SCOTUSblog has a Case Preview with more details on the parties' arguments. The SCOTUSblog Case Page has links to the filings by the parties as well as to the more than 50 amicus briefs that have been filed. The arguments will be streamed live from the Supreme Court today at 10:00 AM here. The transcript and audio of the full oral arguments will be available later today here on the Supreme Court's website.

Supreme Court Review Sought in Challenge to Conversion Therapy Ban

On March 27, a petition for certiorari (full text) was filed with the U.S. Supreme Court in Tingley v. Ferguson. In the case, the U.S. 9th Circuit Court of Appeals denied an en banc rehearing of a 3-judge panel's decision rejecting free speech, free exercise and vagueness challenges to Washington state's ban on practicing conversion therapy on minors. Conversion therapy encourages change in sexual orientation or gender identity. (See prior posting). SCOTUSblog  reports on the petition for review.

Supreme Court Grants 5-Day Administrative Stay of Texas District Court's Abortion Pill Order

U.S. Supreme Court Justice Samuel Alito this afternoon in Food & Drug Administration v. Alliance for Hippocratic Medicine, (Docket No. 22A902, April 14, 2023), granted a 5-day administrative stay of a Texas federal district court's order invalidating the FDA's approval of the abortion drug mifepristone. Any response to the application for a lengthier stay must be filed by 11:59 pm April 18. Any response to that filing must be submitted by noon the next day. CNN reports on developments.

UPDATE: Here is the White House's reaction to the Court's stay.

Supreme Court Asked to Stay Abortion Pill Rulings

Today both the FDA and the manufacturer of the abortion drug mifepristone filed with the U.S. Supreme Court applications for a stay of the Texas federal district court's Order invalidating the FDA's approval of the drug. The 5th Circuit Court of Appeals allowed part of the district court's order to remain in effect. Today's Applications for a Stay were filed with Justice Alito, the Justice assigned by the Court to receive emergency applications from the 5th Circuit.  Here is the filing by Danco Laboratories, and here is the Solicitor General's filing on behalf of the FDA.  Axios reports on the filings.

5th Circuit Allows Part of Stay on Abortion Pills To Remain; U.S. Will Appeal to Supreme Court

 In Alliance for Hippocratic Medicine v. Food & Drug Administration,(5th Cir., April 12, 2023), the U.S. 5th Circuit Court of Appeals granted a partial stay of a Texas federal district court's decision invalidating the FDA's approval of the abortion drug mifepristone. The appeals court held that the statute of limitations barred a challenge to the FDA's initial approval of the drug in 2000. However, the court refused to stay the district court's disapproval of changes the FDA made in 2016.  Those changes significantly reduced prior restrictions on the administration and use of the drug. The court said in part:

Here, applicants have failed to carry their burden at this preliminary stage to show that FDA’s actions were not arbitrary and capricious. We have two principal concerns in that regard. First, FDA failed to “examine the relevant data” when it made the 2016 ... changes.... That’s because FDA eliminated ... safeguards based on studies that included those very safeguards....

Second, the 2016 ... Changes eliminated the requirement that non-fatal adverse events must be reported to FDA. After eliminating that adverse-event reporting requirement, FDA turned around in 2021 and declared the absence of non-fatal adverse-event reports means mifepristone is “safe.”... This ostrich’s-head-in-the-sand approach is deeply troubling.... It’s unreasonable for an agency to eliminate a reporting requirement for a thing and then use the resulting absence of data to support its decision.

Reuters reports on the decision. 

Earlier today, the Justice Department announced that it would seek emergency relief from the U.S. Supreme Court.

Certiorari Denied in Catholic School Teacher's Suit Against His Union

The U.S. Supreme Court yesterday denied review in Jusino v. Federation of Catholic Teachers, Inc., (Docket No. 22-662, certiorari denied 3/27/2023). (Order List). In the case, the U.S. 2nd Circuit Court of Appeals held  that the National Labor Relations Act does not apply to a Catholic parochial school teacher's duty-of-fair-representation claim against his union.

Certiorari Denied in Challenge by Preacher to University's Speaker Permit Rule

The U.S. Supreme Court today denied review in Keister v. Bell, (Docket No. 22-388, certiorarari dened, 3/20/2023). (Order List.) In the case, the U.S. 11th Circuit Court of Appeals rejected a challenge to the University of Alabama's policy that requires a permit in order for a speaker to participate in expressive conduct on University grounds, with an exception for “casual recreational or social activities.” The challenge was brought by a traveling evangelical preacher who, with a friend, set up a banner, passed out religious literature and preached through a megaphone on a campus sidewalk. (See prior posting.) Links to filings with the Supreme Court in the case are available here.  Reuters reports on the Court's action. [Thanks to Thomas Rutledge for the lead.]

Certiorari Denied in Challenge to Police Department Prayer Vigil

The U.S. Supreme Court today denied review in City of Ocala, Florida v. Rojas, (Docket No. 22-278, certiorari denied 3/6/2023) (Order List.) In the case the U.S. 11th Circuit Court of Appeals vacated and remanded a district court's Establishment Clause decision that had relied on the now-repudiated Lemon test. The district court had granted summary judgment to plaintiffs who challenged a prayer vigil co-sponsored by the Ocala police department held in response to a shooting spree that injured several children. (See prior posting.) Justices Gorsuch and Thomas filed separate opinions (full text). Justice Gorsuch, while agreeing with the denial of certiorari, contended that the district court should also reconsider the question of plaintiffs' standing as "offended observers," saying in part:

"... [M]ost every governmental action probably offends somebody. No doubt, too, that offense can be sincere, sometimes well taken, even wise. But recourse for disagreement and offense does not lie in federal litigation. Instead, in a society that holds among its most cherished ambitions mutual respect, tolerance, self-rule, and democratic responsibility, an ‘offended viewer’ may ‘avert his eyes’ or pursue a political solution."

Justice Thomas dissented from the denial of review, saying in part:

[W]e should have granted certiorari to review whether respondents had standing to bring their claims. Standing is an antecedent jurisdictional requirement that must be established before a court reaches the merits....

I have serious doubts about the legitimacy of the “offended observer” theory of standing applied below.

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.