Sotomayor Is High Court Pick; Here Are Her Religion Decisions

President Obama has nominated Second Circuit Judge Sonia Sotomayor to replace retiring Justice David Souter on the United States Supreme Court. (New York Times). If confirmed by the Senate, Sotomayor will be the first Hispanic to serve on the high court. Sotomayor has served on the Second Circuit since 1998. She served as a federal district court judge in the Southern District of New York from 1992 to 1998. Here is an overview of her judicial views on free exercise, establishment clause and other religion issues. She wrote more on the issue as a district court judge than she has on the 2nd Circuit.

On the Second Circuit, Sotomayor wrote an important dissent in one case

• Hankins v. Lyght, (2006): In an age discrimination challenge by a Methodist clergyman, Judge Winter writing for the majority held that RFRA is properly applied to an Age Discrimination in Employment Act claim. Judge Sotomayor dissented contending that RFRA does not apply to disputes between private parties and that the ADEA does not govern disputes between religious entities and their spiritual leaders.

Judge Sotomayor wrote the court's opinion in 3 other religion-related cases on the 2nd Circuit:

• United States v. Reimer, (2004)(citizenship revocation of Nazi collaborator);
• Ford v. McGinnis, (2003) (prisoner free exercise);
• Salahuddin v. Mead, (1999) (prisoner free exercise).

Sotomayor was on the 2nd Circuit panel that decided a number of other religion-related cases, many of which were either prisoner or immigration cases. Three that involved other types of religion issues in which Sotomayor joined the court's opinion were:

• Friedman v. Clarkstown Central School District, 75 Fed. Appx. 815 (2003) [LEXIS link] (religious objection to required immunization);
• Fifth Ave. Presbyterian Church v. City of New York, (2002) (use of church grounds as homeless shelter);
• Rosario v. Does 1 to 10, 36 Fed. Appx. 25 (2002) [LEXIS link] (teacher dismissed for introducing religious material in classroom).
• [UPDATE] Related opinions in Okwedy v. Molinari (1, 2) (Staten Island Borough president complains to billboard company about display of Biblical verses condmning homosexual behavior.) (Discussed at Volokh Conspiracy.)

Sotomayor wrote more extensively on religion clause matters as a federal district judge. Here is a survey of her religion opinions while on the Southern District of New York:

• Mehdi v. United States Postal Service, 988 F. Supp. 721 (1997) [LEXIS link] (rejecting claim by Muslim plaintiffs that post offices must include crescent and star along with Christmas and Hanukkah decorations);
• Moore v. Kennedy, 1996 U.S. Dist. LEXIS 11474 (1996) (prisoner free exercise);
• Miller v. New York State Department of Labor, 1996 U.S. Dist. LEXIS 11067 (1996) (employment discrimination);
• Utkor v. McElroy, 930 F. Supp. 881 (1996) [LEXIS link] (immigration asylum);
• DiNapoli v. DiNapoli, 1995 U.S. Dist. LEXIS 13778 (1995) (accusations against sibling, member of religious order, growing out of estate administration).
• Rodriguez v. Coughlin, 1994 U.S. Dist. LEXIS 5832 (1994) and Campos v. Coughlin, 854 F. Supp. 194 (1994) [LEXIS link] (preliminary injunction allowing Santeria prisoners to wear religious beads).
• Flamer v. City of White Plains, 841 F. Supp. 1365 (1993) [LEXIS link] (enjoining city from preventing rabbi's placing of menorah in city park during Hanukkah).
  

UPDATE: Here is the White House press release and blog posting on the nomination. Here is the full text of the President's remarks on his choice. Orin Kerr on Volokh Conspiracy points out that if Sotomayor is confirmed, six of the nine Justices will be Catholic. Two are Jewish and Justice John Paul Stevens will be the only Protestant remaining on the Court. (Background data.)

UPDATE 2: The Wall Street Journal on Wednesday posted an interesting interview with Prof. Douglas Kmiec on how Judge Sotomayor's Catholic upbringing may have affected her judicial performance and decisions.

Issues of Religion Play Little Role In First Day of Sotomayor Hearings

Yesterday, the Senate Judiciary Committee held its first day of hearings on the nomination of Judge Sonia Sotomayor to the U.S. Supreme Court. The day began with opening statements from each member of the Committee. Then the Senators from Sotomayor's home state of New York (Sens. Schumer and Gillibrand) introduced the nominee. The day's hearings closed with Sotomayor's opening statement. Issues of religion, religious freedom and church-state were not particularly prominent. The Washington Post has published the full text of all the statements. Here are the only references in them issues of religion:

Sen. Patrick Leahy:

Those who break barriers often face the added burden of overcoming prejudice.... The confirmation of Justice Louis Brandeis, the first Jewish American to be nominated to the high court, was a struggle rife with anti-Semitism and charges that he was a "radical". The commentary at the time included questions about "the Jewish mind" and how "its operations are complicated by altruism." Likewise, the first Catholic nominee had to overcome the argument that "as a Catholic he would be dominated by the pope."

Sen. Jeff Sessions:

Do I want a judge that allows his or her social, political, or religious views to change the outcome? Or, do I want a judge that impartially applies the law to the facts, and fairly rules on the merits, without bias or prejudice?

Sen. Chuck Schumer (discussing cases Sotomayor has decided):

And she upheld the First Amendment right of a prisoner to wear religious beads under his uniform.

Sen. Benjamin Cardin:

My grandparents came to America more than 100 years ago. I am convinced that they came to America not only for greater economic opportunities, but because of the ideals expressed in our Constitution, especially the First Amendment guaranteeing religious freedom.

My grandparents wanted their children to grow up in a country where they would be able to practice their Jewish faith and fully participate in their community and government. My father, one of their sons, became a lawyer, state legislator, circuit court judge and President of his synagogue. And now his son serves in the U.S. Senate.

While our Founding Fathers made freedom of religion a priority, equal protection for all races took longer to achieve.... I remember with great sadness how discrimination was not only condoned but, more often than not, actually encouraged against Blacks, Jews, Catholics, and other minorities in the community. There were neighborhoods that my parents warned me to avoid for fear of my safety because I was Jewish. The local movie theater denied admission to African Americans. Community swimming pools had signs that said "No Jews, No Blacks Allowed." Even Baltimore's amusement parks and sports clubs were segregated by race.

Sen Dick Durbin:

Your mother worked two jobs so she could afford to send you and your brothers to Catholic schools, and you earned scholarships to Princeton and Yale.

Senator Kirsten Gillibrand's introduction of Sotomayor included a quote from Justice Scalia that he "grew up with people of all religious and ethnic backgrounds."

Judge Sotomayor in her opening statement made no mention of religion, religious freedom or church-state issues.

An opinion piece from today's Wall Street Journal asks: "Why was Samuel Alito's Catholicism so much more discussed than Sonia Sotomayor's?"

Sotomayor Questioned About Her Free Exercise Jurisprudence

Finally yesterday, in the third day of Judiciary Committee hearings on the confirmation of Judge Sonia Sotomayor as Associate Justice of the United States Supreme Court, one Senator asked her a question about her decisions on religious freedom. Here, from the full transcript, is the relevant exchange between her and Sen. Benjamin Cardin (D-MD):

CARDIN: Well, let me conclude on one other case that you ruled on, where I also agree with your decision. That's the Ford v. McGinnis, where you wrote a unanimous panel opinion overturning a district court summary judgment finding in favor of the Muslim inmate who was denied by prison officials access to his religious meals marking the end of Ramadan.

You held that the inmate's fundamental rights were violated and that the opinions of the department of correction and religious authorities cannot trump the plaintiff's sincere and religious beliefs.

The freedom of religion is one of the basic principles in our Constitution, as I said in my opening comments. It was one of the reasons why my grandparents came to America. The freedom of religion, expression is truly a fundamental American right.
Please share with us your philosophy as to -- maybe it's a wrong use of terms -- but the importance of that provision in the Constitution and how you would go about dealing with cases that could affect that fundamental right in our Constitution.

SOTOMAYOR: I don't mean to be funny, but the court has held that it's fundamental in the sense of incorporation against the state. But it is a very important and central part of our democratic society that we do give freedom of religion, the practice of religion, that the Constitution restricts the -- the state from establishing a religion, and that we have freedom of expression in speech, as well.

Those freedoms are central to our Constitution. The Ford case, as others that I had rendered in this area, recognize the importance of that in terms of one's consideration of actions that are being taken to restrict it in a particular circumstance.

Speaking further is difficult to do. Again, because of the role of a judge, to say it's important, that it's fundamental, and it's legal and common meaning is always looked at in the context of a particular case. What's the state doing?

In the Ford case that you just mentioned, the question there before the court was, did the district court err in considering whether or not the religious belief that this prisoner had was consistent with the established traditional interpretation of a meal at issue, OK?

And what I was doing was applying very important Supreme Court precedent that said, it's the subjective belief of the individual. Is it really motivated by a religious belief?

It's one of the reasons we recognize conscientious objectors, because we're asking a court not to look at whether this is orthodox or not, but to look at the sincerity of the individual's religious belief and then look at what the state is doing in light of that. So that was what the issue was in Ford.

Also yesterday, Sen. Jeff Sessions entered into the record a letter (full text) from Richard Land, President of the Southern Baptist Convention's Ethics & Religious Liberty Commission, opposing Sotomayor's confirmation.

The Washington Post has transcripts of the questioning of Sotomayor by each of the Senators on the Judiciary Committee.

Justice Sotomayor Denies Injunction Pending Appeal In Hobby Lobby's Contraceptive Coverage Challenge

As previously reported, Hobby Lobby Stores and its sister corporation Mardel, Inc. have been seeking a temporary injunction to prevent enforcement of the Affordable Care Act contraceptive coverage mandate against them as they litigate their religious liberty challenges to the health care insurance rule.  After the 10th Circuit denied them an injunction, they sought a injunction from Supreme Court Justice Sotomayor in her role as Circuit Justice.  Yesterday, Sotomayor refused to grant the injunction.  In an in chambers opinion in Hobby Lobby Stores, Inc. v. Sebelius, (Sup. Ct., Dec. 26, 2012), Justice Sotomayor wrote in part:

Applicants do not satisfy the demanding standard for the extraordinary relief they seek.  First, whatever the ultimate merits of the applicants’ claims, their entitlement to relief is not “indisputably clear.”... This Court has not previously addressed similar RFRA or free exercise claims brought by closely held for-profit corporations and their controlling shareholders alleging that the mandatory provision of certain employee benefits substantially burdens their exercise of religion.... Moreover, the applicants correctly recognize that lower courts have diverged on whether to grant temporary injunctive relief to similarly situated plaintiffs raising similar claims....

AP reports on the decision, as does SCOTUS Blog.

UPDATE: Following Justice Sotomayor's decision, the Becket Fund, counsel for Hobby Lobby announced:

Hobby Lobby will continue their appeal before the Tenth Circuit. The Supreme Court merely decided not to get involved in the case at this time. It left open the possibility of review after their appeal is completed in the Tenth Circuit. The company will continue to provide health insurance to all qualified employees. To remain true to their faith, it is not their intention, as a company, to pay for abortion-inducing drugs.

Lawyer In Case Praises Sotomayor's 1993 "Menorah" Decision

In yesterday's Jerusalem Post, lawyer Nathan Lewin describes the case he won in White Plains, New York in 1993, representing a Chabad rabbi who wished to display a large menorah during Hanukkah at one of the city's two major parks. The decision in Flamer v. City of White Plains,(SDNY, 1993), has become the center of attention as one of the major religion decisions written by Supreme Court nominee Sonia Sotomayor when she was a federal district judge. As Lewin recounts, the primary opposition to the menorah were other Jewish organizations and more liberal local rabbis who generally press for strict church-state separation. The mayor and city council were responding to that pressure. So Chabad sued, and Sotomayor ruled in its favor, following precedent in the 6th and 11th Circuit, while distinguishing a 1989 case decided by her own 2nd Circuit that went the other way. Lewin comments:

That court of appeals [the 2nd Circuit] had jurisdiction to review and reverse any decision the neophyte Judge Sotomayor might render in the White Plains case. The safest course for her was to hide behind the 1989 ruling and send Chabad packing. Instead, she took our constitutional claim seriously and authored a lengthy and detailed opinion reviewing Supreme Court precedents. She accurately described the Vermont decision issued by her superiors as "somewhat confusing" and distinguished it away. Citing a line of Supreme Court decisions that had had upheld speech with religious content and found it no less worthy of constitutional protection than secular speech, she upheld the right of a private party to deliver a religious message in a "public forum." The opinion was persuasive enough that White Plains decided not to appeal, and the Chabad menora is now a White Plains institution.

BJC Publishes Analysis of Sotomayor's Religion Decisions

The Baptist Joint Committee for Religious Liberty has published a new report evaluating the free exercise and establishment clause opinions written by Supreme Court nominee Judge Sonia Sotomayor (download of full text). It concludes:

While Sotomayor’s written record raises no red flags, it also fails to provide complete assurance to those who are most concerned about our fragile religious freedom rights. In the free exercise cases, she displays careful attention to protecting religious rights, including in prisons where courts generally give deference to government officials. Likewise, these cases demonstrate an emphasis on the importance of assessing the individual’s specific religious claim. This approach illustrates an expansive view of religious freedom that does not depend on the approval of the majority. Her religious display cases demonstrate the fact-sensitive nature of such disputes, but tell us little about where she would draw the line between permissible acknowledgements of religion and unconstitutional displays that send a message of endorsement of religion by the government. Beyond those cases, her record gives little indication of her views of the Supreme Court’s various Establishment Clause standards or how she is likely to decide such cases.

Sotomayor’s writings include few if any statements articulating how the First Amendment protects religious liberty, promotes the voluntary nature of religion, prevents governmental interference in religion and tends to reduce conflict among religions. Still, her record offers positive signs that she will be a thoughtful, fair-minded jurist in protecting religious freedom.

[Thanks to Don Byrd for the lead.]

Issues of Religion Largely Absent From Second Day of Sotomayor Hearings

Yesterday, at the second day of hearings on the nomination of Judge Sonia Sotomayor as Associate Justice on the U.S. Supreme Court, religion, religious freedom and church-state issues received little attention either in questions posed to the nominee or in her answers. Don Byrd, who has been blogging live from the hearings, identifies three exchanges relating to religious issues. The full hearing transcripts are available via the Washington Post. Here are the relevant exchanges:

In questioning Sotomayor about her views on the Second Amendment, Sen. Orin Hatch asked: "OK. As I noted, the Supreme Court puts the Second Amendment in the same category as the First and the Fourth Amendments as pre-existing rights that the Constitution merely codified. Now, do you believe that the First Amendment rights, such as the right to freely exercise religion, the freedom of speech, or the freedom of the press, are fundamental rights?" To which Sotomayor replied: "Those rights have been incorporated against the states. The states must comply with them."

Sen. Lindsey Graham, expressing his concern about expansive interpretations of the Constitution said: "And that gets us to the speeches. That broad provision of the Constitution that's taken us from no written prohibition protecting the unborn, no written statement that you can't voluntarily pray in school, and on and on and on and on, and that's what drives us here, quite frankly.... [A] lot of us are concerned from the left and the right that unelected judges are very quick to change society in a way that's disturbing...."

Sen Diane Feinstein, asking about the overruling of precedent, referred to the Hein case that denied a taxpayer standing to challenge spending by President Bush's faith-based office. She said: "In a rare rebuke of his colleagues, Justice Scalia has sharply criticized Chief Justice Roberts and Justice Alito for effectively overruling the court's precedents without acknowledging that they were doing so. Scalia wrote in the Hein case ... 'Overruling prior precedent is a serious undertaking, and I understand the impulse to take a minimalist approach. But laying just claim to be honoring stare decisis requires more than beating a prior precedent to a pulp and then sending it out to the lower courts weakened, denigrated, more incomprehensible than ever, and yet somehow technically alive....'"

(See prior related posting.)

Supreme Court Says Texas Heartbeat Abortion Law Can Be Challenged In Court

The U.S. Supreme Court today in Whole Woman's Health v. Jackson, (Sup. Ct., Dec. 10, 2021), held that abortion providers may sue one set of defendants in their challenge to Texas "heartbeat" abortion law. Eight of the Justices (all but Justice Thomas) concluded that Texas still involved one set of state officials in enforcement of the heartbeat abortion ban. Plaintiffs may challenge the statute by suing the state officials who have disciplinary authority over medical licensees who violate the ban. Thus Texas failed to completely insulate the law from pre-enforcement challenge. 

Justice Thomas filed a dissenting opinion arguing in part:

The principal opinion then proposes that the Texas Medical Board may enforce S. B. 8 under §164.055 of the Texas Occupations Code. Thus, on that view, S. B. 8 permits the Medical Board to discipline physicians for violating the statute despite the Act’s command that “the requirements of this subchapter shall be enforced exclusively through . . . private civil actions,” “[n]otwithstanding . . . any other law.” .... By its terms, S. B. 8’s saving clause preserves enforcement only of laws that “regulate or prohibit abortion.” 

Chief Justice Roberts, joined by Justices Breyer, Sotomayor and Kagan concluded that the Attorney General and court clerks should also be able to be sued in a challenge to the law. His opinion says in part:

The clear purpose and actual effect of S. B. 8 has been to nullify this Court’s rulings. It is, however, a basic principle that the Constitution is the “fundamental and paramount law of the nation,” and “[i]t is emphatically the province and duty of the judicial department to say what the law is.” Marbury v. Madison....  Indeed, “[i]f the legislatures of the several states may, at will, annul the judgments of the courts of the United States, and destroy the rights acquired under those judgments, the constitution itself becomes a solemn mockery.”... The nature of the federal right infringed does not matter; it is the role of the Supreme Court in our constitutional system that is at stake.

Justice Sotomayor filed a dissenting opinion, joined by Justices Breyer and Kagan, saying in part:

My disagreement with the Court runs far deeper than a quibble over how many defendants these petitioners may sue. The dispute is over whether States may nullify federal constitutional rights by employing schemes like the one at hand. The Court indicates that they can, so long as they write their laws to more thoroughly disclaim all enforcement by state officials, including licensing officials. This choice to shrink from Texas’ challenge to federal supremacy will have far-reaching repercussions....

This is a brazen challenge to our federal structure. It echoes the philosophy of John C. Calhoun, a virulent defender of the slaveholding South who insisted that States had the right to “veto” or “nullif[y]” any federal law with which they disagreed....

What are federal courts to do if, for example, a State effectively prohibits worship by a disfavored religious minority through crushing “private” litigation burdens amplified by skewed court procedures, but does a better job than Texas of disclaiming all enforcement by state officials? Perhaps nothing at all, says this Court....

Houston Public Media reports on the decision.

Then in the other challenge to the Texas law, United States v. Texas, (Sup. Ct., Dec. 10, 2021), the Court, over the dissent of Justice Sotomayor, dismissed the writ of certiorari as improvidently granted.

Supreme Court, 5-4, Refuses To Enjoin Texas Heartbeat Abortion Ban

The U.S. Supreme Court yesterday in a 5-4 decision refused to prevent Texas' heartbeat abortion law (S.B. 8) from continuing in effect while its constitutionality is being litigated. The law bans abortions if the physician has detected a fetal heartbeat-- usually at around 6 weeks of a pregnancy. An unusual provision in the law allows it to be enforced only through civil actions by individuals, and not by state officials. The unsigned majority opinion in Whole Woman's Health v. Jackson, (US Sup. Ct., Sept. 1, 2021) states in part:

The applicants now before us have raised serious questions regarding the constitutionality of the Texas law at issue. But their application also presents complex and novel antecedent procedural questions on which they have not carried their burden. For example ... it is unclear whether the named defendants in this lawsuit can or will seek to enforce the Texas law against the applicants in a manner that might permit our intervention...

[T]his order is not based on any conclusion about the constitutionality of Texas’s law, and in no way limits other procedurally proper challenges to the Texas law, including in Texas state courts.

Chief Justice Roberts filed a dissenting opinion joined by Justices Breyer and Kagan, saying in part:

The statutory scheme before the Court is not only unusual, but unprecedented. The legislature has imposed a prohibition on abortions after roughly six weeks, and then essentially delegated enforcement of that prohibition to the populace at large. The desired consequence appears to be to insulate the State from responsibility for implementing and enforcing the regulatory regime.

The State defendants argue that they cannot be restrained from enforcing their rules because they do not enforce them in the first place. I would grant preliminary relief to preserve the status quo ante—before the law went into effect—so that the courts may consider whether a state can avoid responsibility for its laws in such a manner....

Justice Breyer, joined by Justices Sotomayor and Kagan filed a dissenting opinion, saying in part:

I recognize that Texas’s law delegates the State’s power to prevent abortions not to one person (such as a district attorney) or to a few persons (such as a group of government officials or private citizens) but to any person. But I do not see why that fact should make a critical legal difference. That delegation still threatens to invade a constitutional right, and the coming into effect of that delegation still threatens imminent harm.

Justice Sotomayor, joined by Justices Breyer and Kagan, filed a dissenting opinion, saying in part:

The Court’s order is stunning. Presented with an application to enjoin a flagrantly unconstitutional law engineered to prohibit women from exercising their constitutional rights and evade judicial scrutiny, a majority of Justices have opted to bury their heads in the sand.

Justice Kagan, joined by Justices Breyer and Sotomayor filed a dissenting opinion, saying in part:

Today’s ruling illustrates just how far the Court’s “shadow-docket” decisions may depart from the usual principles of appellate process.

CNN reports on the decision.

Tiller Murder May Impact Sotomayor Hearings

Some anti-abortion leaders fear that the murder of Dr. George Tiller at his church yesterday will impact hearings on the confirmation of Sonia Sotomayor for the Supreme Court. AP reports that activists fear backlash to the killing will stifle anti-abortion viewpoints being expressed in the questioning of Sotomayor by the Senate Judiciary Committee. Most anti-abortion leaders quickly issued statements condemning the murder. However the reaction (full text) of activist Terry Randall, founder of Operation Rescue, was more mixed. He said in part:

George Tiller was a mass-murderer. We grieve for him that he did not have time to properly prepare his soul to face God. I am more concerned that the Obama Administration will use Tiller's killing to intimidate pro-lifers into surrendering our most effective rhetoric and actions.... Those men and women who slaughter the unborn are murderers according to the Law of God. We must continue to expose them in our communities and peacefully protest them at their offices and homes, and yes, even their churches.

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

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

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

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

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

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

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

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

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

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.

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

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

Kansas Same-Sex Marriage Ruling Generates Flurry of Appeals

The issuance by a Kansas federal district court on Nov. 5 in Marie v. Moser of a preliminary injunction against Kansas' ban on same-sex marriages has generated a flurry of appeals. That preliminary injunction was to take effect today. (See prior posting.)

On Nov. 6, Kansas filed an emergency motion with the 10th Circuit to stay the district court's injunction to give Kansas time to seek an initial appeal to the 10th Circuit en banc.  Three-judge panels of the 10th Circuit have already ruled against same-sex marriage bans in Utah and Oklahoma. (Kansas AG's statement.)  On Nov. 7, the 10th Circuit denied the motion for a stay. Yesterday, Kansas filed a stay application (full text) with U.S. Supreme Court Justice Sonia Sotomayor, and Justice Sotomayor issued an order (full text) staying the preliminary injunction until today and ordering plaintiffs to file a response by this afternoon.

Meanwhile, in a Nov. 7 opinion (full text), the district court denied the motion by Westboro Baptist Church to intervene in the appeal so that it can raise religiously-based arguments against same-sex marriage. (See prior posting.) WBC immediately filed a Notice of Appeal with the 10th Circuit. Yesterday's Topeka Capital-Journal reports on developments.

Supreme Court Says Maine Cannot Exclude Sectarian Schools From Its Tuition Reimbursement Program

In Carson v. Makin, (Sup. Ct., June 21, 2022), in a 6-3 decision, the U.S. Supreme Court held that Maine's program that pays tuition (up to a statutory limit) to out-of-district public or private high schools for students whose districts do not operate a high school, but which requires participating schools to be nonsectarian, violates the Free Exercise Clause. The majority opinion by Chief Justice Roberts says in part:

The State pays tuition for certain students at private schools— so long as the schools are not religious. That is discrimination against religion. A State’s antiestablishment interest does not justify enactments that exclude some members of the community from an otherwise generally available public benefit because of their religious exercise....

Maine’s “nonsectarian” requirement for its otherwise generally available tuition assistance payments violates the Free Exercise Clause of the First Amendment. Regardless of how the benefit and restriction are described, the program operates to identify and exclude otherwise eligible schools on the basis of their religious exercise.

Justice Breyer, joined by Justice Kagan and for the most part by Justice Sotomayor, filed a dissenting opinion which says in part:

Nothing in our Free Exercise Clause cases compels Maine to give tuition aid to private schools that will use the funds to provide a religious education.... [T]his Court’s decisions in Trinity Lutheran and Espinoza prohibit States from denying aid to religious schools solely because of a school’s religious status—that is, its affiliation with or control by a religious organization.... But we have never said that the Free Exercise Clause prohibits States from withholding funds because of the religious use to which the money will be put....

Maine’s decision not to fund such schools falls squarely within the play in the joints between those two Clauses. Maine has promised all children within the State the right to receive a free public education. In fulfilling this promise, Maine endeavors to provide children the religiously neutral education required in public school systems.... The Religion Clauses give Maine the ability, and flexibility, to make this choice. 

Justice Sotomayor also filed a dissenting opinion which says in part:

This Court continues to dismantle the wall of separation between church and state that the Framers fought to build.... 

If a State cannot offer subsidies to its citizens without being required to fund religious exercise, any State that values its historic antiestablishment interests more than this Court does will have to curtail the support it offers to its citizens.

CNN reports on the decision.

Supreme Court in Shadow Docket Case Rejects California's Policy on Informing Parents of Student's Gender Transition

On Monday evening, the U.S. Supreme Court in Mirabelli v. Bonta, (Sup. Ct., March 2, 2026), barred enforcement against objecting parents of a controversial California school policy that requires student consent before disclosing to parents a student's gender transitioning in school. A California federal district court had enjoined enforcement of the policy in a challenge by parents and teachers. The 9th Circuit Court of Appeals, however, stayed the district court's injunction, thus reinstating the policy. In a per curiam opinion, the Supreme Court ruled for the parents.  It vacated the 9th Circuit's stay as to parents who object to the policy, but left the stay in place as to teachers. Justices Thomas and Alito would have vacated the injunction as to teachers as well. Justices Jackson, Kagan and Sotomayor dissented.

The per curiam opinion says in part:

We conclude that the parents who seek religious exemptions are likely to succeed on the merits of their Free Exercise Clause claim.  California’s policies likely trigger strict scrutiny under that provision because they substantially interfere with the “right of parents to guide the religious development of their children.” ...  The parents who assert a free exercise claim have sincere religious beliefs about sex and gender, and they feel a religious obligation to raise their children in accordance with those beliefs....

The same is true for the subclass of parents who object to those policies on due process grounds.  Under long-established precedent, parents—not the State—have primary authority with respect to “the upbringing and education of children.” ... The right protected by these precedents includes the right not to be shut out of participation in decisions regarding their children’s mental health....

Justice Barrett, joined by Chief Justice Roberts and Justice Kavanaugh, filed a concurring opinion, saying in part:

The dissent questions how the Court can adhere to parental-rights precedent after its decision in Dobbs v. Jackson Women’s Health Organization..... But Dobbs calls into question neither the doctrine of substantive due process nor the other unexpressed rights that the doctrine protects....

 ... [C]ontrary to the dissent’s charge, granting interim relief is not a sign of the Court’s “impatience” to reach the merits.... Instead, the grant reflects the Court’s judgment about the risk of irreparable harm to the parents.... 

Justice Kagan, joined by Justice Jackson, filed a dissenting opinion, saying in part:

Today’s decision shows, not for the first time, how our emergency docket can malfunction.  A case raising novel legal questions and arousing strong views comes to this Court via an application about whether to stay a district court’s injunction pending appeal. The ordinary appellate process has barely started; only a district court has ruled on the case’s merits. The Court receives scant and, frankly, inadequate briefing about the legal issues in dispute.  It does not hold oral argument or deliberate in conference, as regular procedures dictate. It considers the request on a short fuse—a matter of weeks. And then the Court grants relief by means of a terse, tonally dismissive ruling designed to conclusively resolve the dispute. The Court does all this even though the application of existing law to the case raises tricky questions, and so cries out for reflection and explanation....

As to due process particularly... I have no doubt that parents have rights, even though unenumerated, concerning their children and the life choices they make..... On the other side of ledger, of course, a State has critical interests in the care and education of children.  But California’s policy, in depriving all parents of information critical to their children’s health and well-being, could have crossed the constitutional line.  And that would entitle the parents, at the end of the day, to relief. 

The Court, however, would be far better equipped to draw the appropriate line and to explain its legal basis—in short, to do law in the right way—if it had followed our ordinary processes....

Justice Sotomayor, without writing or joining an opinion, stated that she would have left the 9th Circuit's injunction in place both as to parents and teachers.

SCOTUSblog reports on the decision.

Supreme Court Unanimously Upholds Church's Challenge To Restrictive Sign Ordinance

Today in Reed v. Town of Gilbert, Arizona, (Sup. Ct., June 18, 2015), the U.S. Supreme Court unanimously held that an Arizona town's sign ordinance that placed greater restrictions on temporary directional signs than on other signs violates the First Amendment.  The challenge to the ordinance was brought by a local church whose Sunday services are held at various temporary locations and which posted signs each weekend displaying the Church name and the time and location of the next service.  Justice Thomas' majority opinion (joined by Chief Justice Roberts and Justices Scalia, Kennedy, Alito and Sotomayor) concluded that the provisions placing greater restrictions on temporary directional signs than on signs conveying other messages (such as ideological and political signs) "are content-based regulations of speech that cannot survive strict scrutiny."  It emphasizes:

Innocent motives do not eliminate the danger of censorship presented by a facially content-based statute, as future government officials may one day wield such statutes to suppress disfavored speech.

It added:

a speech regulation targeted at specific subject matter is content based even if it does not discriminate among viewpoints within that subject matter.

Justice Alito, joined by Justices Kennedy and Sotomayor, filed a short concurring opinion setting out examples of content-neutral alternatives.

Justice Breyer filed a separate opinion concurring in the judgment saying that while the regulation here does not warrant strict scrutiny, it is nevertheless invalid. He explains:

The better approach is to generally treat content discrimination as a strong reason weighing against the constitutionality of a rule where a traditional public forum, or where viewpoint discrimination, is threatened, but elsewhere treat it as a rule of thumb, finding it a helpful, but not determinative legal tool, in an appropriate case, to determine the strength of a justification.

Justice Kagan (joined by Justices Ginsburg and Breyer) also filed an opinion concurring in the judgment, saying in part:

The Town of Gilbert’s defense of its sign ordinance—most notably, the law’s distinctions between directional signs and others—does not pass strict scrutiny, or intermediate scrutiny, or even the laugh test.... The absence of any sensible basis for these and other distinctions dooms the Town’s ordinance under even the intermediate scrutiny that the Court typically applies to “time, place, or manner” speech regulations. Accordingly, there is no need to decide in this case whether strict scrutiny applies to every sign ordinance in every town across this country containing a subject-matter exemption.

I suspect this Court and others will regret the majority’s insistence today on answering that question in the affirmative.  As the years go by, courts will discover that thousands of towns have such ordinances, many of them “entirely reasonable.”

Jewish Group Solicits Questions To Supreme Court Nominee

Reform Judaism's Religious Action Center has put up a web page titles "Ask Judge Sotomayor." It invites site visitors to submit questions they would like to see the Senate Judiciary Committee ask Sotomayor during her confirmation hearings. RAC says it will share questions submitted with Senators.

Utah Seeks Stay From U.S. Supreme Court of District Court's Same-Sex Marriage Decision

As reported by Lyle Denniston at SCOTUSblog, yesterday the state of Utah filed an Application (full text) seeking an immediate stay pending appeal of the Dec. 20 federal district court decision in Kitchen v. Herbert which barred Utah from enforcing its ban on same-sex marriage.  The district court and 10th Circuit have both denied stays. As required by Supreme Court rule, the stay application was filed with Justice Sotomayor, the Justice assigned to the 10th Circuit.  Late yesterday afternoon, Justice Sotomayor asked for a response from respondents by noon on Friday.  It appears that Utah's governor and attorney general have retained an outside law firm to handle the attempt to obtain Supreme Court review.  A Boise, Idaho firm is listed as petitioners' counsel, with counsel of record being the firm's senior partner Monte Neil Stewart who was a law clerk for Chief Justice Warren Burger and is the founder of the Marriage Law Foundation.

Utah's application for a stay argues that it is likely that the district court will be reversed on appeal, and if that happens without a stay the state will be faced with the problem of whether and how to unwind the many marriages that will have occurred in the interim. AP reports on Utah's efforts.

Supreme Court Enjoins Enforcement of Contraceptive Mandate Against Religious Non-Profit Contingent On Alternative Filing During Appeal

On New Year's Eve, U.S. Supreme Court Justice Sonia Sotomayor issued a temporary injunction to prevent immediate enforcement of the Affordable Care Act contraceptive coverage mandate compromise against the Little Sisters of the Poor. (See prior posting.) Now that the Supreme Court has received the government's response in the case, today the full Supreme Court issued the following unusual order , creating its own sort of compromise as the case proceeds on appeal:

The application for an injunction having been submitted to Justice Sotomayor and by her referred to the Court, the Court orders: If the employer applicants inform the Secretary of Health and Human Services in writing that they are non-profit organizations that hold themselves out as religious and have religious objections to providing coverage for contraceptive services, 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 the appeal by the United States Court of Appeals for the Tenth Circuit. To meet the condition for injunction pending appeal, applicants need not use the form prescribed by the Government and need not send copies to third-party administrators. The Court issues this order based on all of the circumstances of the case, and this order should not be construed as an expression of the Court’s views on the merits.