The “big hitter” for this upcoming term is in the pro-life area: Dobbs v. Jackson Women’s Health Organization. Instead of nibbling around the edges of Roe and Casey, as the abortion cases in the Court for the last several decades have done, Dobbs goes for the heart, with Mississippi arguing that the viability rule should be discarded, as its challenged law prohibits abortions after 15 weeks’ gestation, well prior to viability outside the womb. With Thomas and Alito seeming to be solid votes to overrule Roe and Casey, the power of decision apparently lies in the hands of the Trump Three, Gorsuch, Kavanaugh, and Barrett. If they line up with Thomas and Alito to overrule Roe, it would seem likely that they would pull Roberts along with them, as, for institutional reasons, a 6-3 overruling would be preferable to a 5-4 split. A more Roberts-esque result would be to scrap the viability rule but not to overrule Roe’s basic ruling that there is a constitutional right of abortion in some circumstances. Needless to say, a decision in the case will likely not be issued until the last week of the term.
Several other states have petitions pending (or likely to be filed soon) challenging decisions that have struck down their restrictive abortion laws (not including the much-publicized Texas private enforcement law, which still has to work its way through the lower courts). These petitions, including from Arkansas (Rutledge v. Little Rock Family Planning Services) and Indiana (Box v. Planned Parenthood), which involve statutes prohibiting abortions to kill unborn children because of their sex or because they may have Down syndrome, likely will be held pending the decision in Dobbs and then remanded for reconsideration.
Religious Freedom Cases
So far, the religious freedom docket is not particularly robust, although there are several pending petitions that deserve watching and, if granted, could make this a more important term. Two cases have already been granted certiorari.
The first is Carson v. Makin, which is a follow-on case to Espinoza v. Montana Department of Revenue, decided two terms ago. The Supreme Court in Espinoza and previously in Trinity Lutheran had ruled that a state could not deny generally available benefits to a school simply because of its religious status, but reserved the issue of whether benefits could be denied based on how the religious organization would use the funds. Maine has a tuition assistance program that grants funding to private schools, but denies funding to schools when religion “permeates” the curriculum, bringing the “use” issue to the fore. Maine basically has adopted the “pervasively sectarian” case law of the Supreme Court that has largely been eroded during the last several decades but has not formally been laid to rest. The interesting personal angle in this case is that Justice Souter, who was a strong proponent of the “pervasively sectarian” view when he was on the high court, sat on the First Circuit panel that distinguished Espinoza on the status/use basis and upheld Maine’s refusing public assistance to pervasively religious schools. The current justices are very likely to rule against their erstwhile colleague, hopefully with a decision that will inter the “pervasively sectarian” case law once and for all and explain that the Free Exercise and Establishment Clauses do not work at cross purposes.
The second is Ramirez v. Collier, which presents the issue of whether a prisoner to be executed by lethal injection has a free exercise right to have a minister lay hands on him and audibly pray and sing while the process takes place. Texas only allows the minister to be in the room if off to the side and silent. It seems unlikely that the state can marshal sufficient interests to overcome the prisoner’s rights, but states are given much wider latitude in prison situations, which also means that this case will likely be fact specific and not have significant repercussions however it turns out.
Moving to religious freedom petitions, the one that seems most likely to be granted is Kennedy v. Bremerton School District. This case reached the Court a couple years ago in a preliminary injunction status, and cert was denied but with a statement by four justices agreeing to the denial because of its procedural posture but stating that it would be highly problematic if the school had fired the coach for kneeling at the 50-yard-line after a high school football game and bowing his head. On remand, that is exactly what the record showed, but the same Ninth Circuit panel doubled down and found (a) that the coach was not acting in his private capacity when he prayed; and (b) even if he had been, because he publicized that the school was trying to stop him from doing so and others joined him in protest on the field, the school was required under the Establishment Clause to stop him. This gibberish provoked strident dissents from the denial of rehearing en banc. It seems likely that the petition this time will be granted and the Ninth Circuit reversed. Like Carson, this case presents an opportunity to correct the view that the Religion Clauses are “in tension” with each other.
Another important petition that would seem to have a better chance than most to be granted is Gordon College v. DeWeese-Boyd. She was a social work professor at this college that requires all of its faculty to adhere to biblical standards and teach from a Christian worldview. She sued after she was denied tenure, and the school raised the ministerial exception to no avail in the Massachusetts courts. The case provides a good example of the danger of secular courts mucking around with a religious organization’s internal governance and deciding which employees need to follow its beliefs and practices and which do not. It presents the important question left open by Hosanna-Tabor and Our Lady of Guadalupe of how much deference should be given to the good-faith opinion of the religious institution on such matters.
In a somewhat surprising move at the end of last term, after holding the petition in the much-publicized same-sex-marriage vendor case of Arlene’s Flowers v. Washington for about a year pending its important decision in Fulton v. Philadelphia, the Court denied the petition outright, rather than granting it or granting it and immediately remanding for reconsideration in light of Fulton. A motion for reconsideration has been filed, and, although such motions are almost never granted, it has a greater chance than most. Of course, if granted it would present issues the Court side-stepped in Masterpiece Cakeshop.
Roman Catholic Diocese of Albany v. Lacewell is also worthy of attention, as it, too, has echoes of cases past. This case presents a free exercise challenge by nuns to New York’s requirement to provide abortion insurance coverage to employees; the law has an exemption for religious organizations, but limits it to those which serve their own congregants, excluding those like the nuns who primarily serve the poor or employ members of other faiths. This petition, as well as a few others pending, picks up where Fulton left off in that it presents the question of whether Employment Division v. Smith should now be overruled.
Another petition of interest, even though it has received relatively little publicity, is Shurtleff v. Boston. The city allows civic organizations to fly a flag of their choice on one of the three flag poles near city hall when the organization is using the common area, flying over 280 different flags over a several-year period. The only rejection was an organization’s request to fly the Christian flag when it was using the common area to lecture about the place of religion in our nation’s founding. The First Circuit upheld the city’s discriminatory treatment of the Christian flag.
Falling further down the “likelihood of granting” are petitions in Seattle Union Gospel Mission v. Woods and New Life Church v. Fredericksburg, both of which involve courts not giving credence to a religious organization’s designation of who are its “ministers,” and Chaplaincy of Full Gospel Churches v. Navy, which challenges the Navy’s putting into the hands of denominational chaplains the ability to blackball the promotions of non-denominational military chaplains (who are promoted at a lesser rate). While all these cases are worthy of interest, none of them, in my view, has a good chance of a grant. But, of course, it is the rare term in which the Court does not dish out a few surprises. One of them may be provided by a “shadow docket” case involving mandatory Covid vaccinations being objected to on religious grounds or by the Court taking a case to challenge the “de minimis” rule for religious accommodations under Title VII, in a Covid-related case or otherwise.
Time will tell how well these predictions turn out, but for now they are food for thought and for prayer.