BLOG4 Cases That Could Be Added to the Supreme Court’s Oral Argument Calendar

By Jordan Lorence Posted on: | September 22, 2017

The Supreme Court will reconvene on the first Monday in October for its new term. It has not yet filled its oral argument calendar for the term, so it will continue for the next five months or so to grant review for cases that will be heard after the new year through the end of April.

Here are some of the cases to watch:

National Institute of Family and Life Advocates v. Becerra

The justices will consider this pro-life speech case at its first conference of the new term on September 25. This Alliance Defending Freedom case challenges a California statute that requires pro-life pregnancy centers licensed to perform medical services to post a sign giving a phone number for information on how a woman can receive a state-funded abortion.

Obviously, the pro-life centers strongly object to the state forcing them to promote abortion. The Supreme Court was set to review this case last June, but then called for the record and postponed consideration until September 25. This could mean that the Court is taking a closer look at the case. 

City of Bloomfield v. Felix

A town in New Mexico, represented by ADF, is asking the Supreme Court to reverse a lower court ruling that requires removal of a Ten Commandments monument in an area designated for displays by private citizens. This area of law is in some confusion because lower courts have upheld some Ten Commandment displays and ordered them removed in other cases.

Two Bloomfield residents who were offended by the Ten Commandments monument filed the lawsuit to have it removed. This raises a second constitutional issue: Do the “offended observers” have sufficient cause to even ask the federal courts to remove Ten Commandments monuments? Specifically, have they suffered sufficient harm by merely looking at the monuments and being offended by them? The Supreme Court is likely to consider this case in mid-October.

Two Cases Involving Prayer by County Commissioners Before Official Meetings

The commissioners of Rowan County, North Carolina and Jackson County, Michigan open their respective meetings with prayers from the various county commissioners serving on each board. Some citizens filed two lawsuits, challenging this practice, although the Supreme Court upheld prayers before a city council said by local clergy and citizens in the Town of Greece case ADF won in 2014. The two federal appeals courts for these two states split on whether this practice is constitutional. 

Another unusual feature was that both rulings were by all of the judges sitting on each court, called an en banc court, rather than the typical three-judge panel.  The federal appeals court for North Carolina, the Fourth Circuit, declared the practice unconstitutional under the Establishment Clause by a 10-5 vote on July 14. The federal appeals court for Michigan, the Sixth Circuit, upheld the prayer practice by a 9-6 vote on September 6. Rowan County plans to appeal this decision to the U.S. Supreme Court. And the people who sued Jackson County and lost will likely appeal to the U.S. Supreme Court as well.

ADF has been helping both counties defend their prayer practices in court. The fact that all the judges on two different federal appeals courts reached opposite conclusions on whether prayers said by county commissioners is constitutional significantly increases the possibility that the Supreme Court will review these two cases.

Title VII and Title IX Cases

Two controversial cases headed to the Supreme Court deal with the novel question of whether two federal laws banning sex discrimination should be construed to create a protected status for sexual orientation and for “gender identity.” About a half century ago, Congress passed two laws banning sex discrimination in employment (Title VII) and in educational institutions receiving federal funds (Title IX). The intent and genesis of those laws was to provide equal educational and employment opportunities women and girls. For decades, there was no doubt that “sex” referred to males and females as defined by chromosomes and reproductive roles.

But in recent years, activists have been working to convince courts to distort and expand the meaning of discrimination based on “sex” to include “sexual orientation” in the context of employment in Title VII, and “gender identity” in the context of education in Title IX. Two cases are before the Supreme Court, or soon will be, that present these legal issues:

  • The Title VII case involves self-identified homosexual woman who was fired from her job as a security officer for a hospital. The federal appeals court for Georgia, the Eleventh Circuit, rejected her argument that she could bring a claim for sexual orientation discrimination against the hospital under Title VII’s prohibition on sex discrimination.
  • In the Title IX case, a high school girl who professes she is a boy sued the Kenosha, Wisconsin school district, challenging its policy requiring students to use the restroom corresponding to their biological sex. The student desired to use the restroom of the opposite sex as a way of affirming her self-perception, and the federal appeals court for Wisconsin, the Seventh Circuit, agreed that Title IX’s ban on “sex” discrimination also bans discrimination based on “gender identity.” 

One remarkable aspect of these cases is that for years, activists believed they had to convince Congress to amend Title VII and Title IX to add prohibitions on discrimination based on “sexual orientation” and “gender identity.” These cases, and others like them, bypass the hard work of convincing Congress and the voters to support new legislation, by convincing the courts to assume the congressional role of rewriting the statutory term “sex” to include sexual orientation and gender identity. These activists are urging federal judges to create law rather than follow what Congress has passed.

Later this year or early next year, the Supreme Court might take one or both of these cases to resolve the question of whether the term “sex” can be stretched and expanded in these ways that were clearly not intended by Congress when it enacted these laws.

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Jordan Lorence

Senior Counsel, Director of Strategic Engagement

Jordan Lorence serves as senior counsel and director of strategic engagement with Alliance Defending Freedom, where he plays a key role with the Strategic Relations & Training Team.

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