BLOGCases to Watch as the Supreme Court Starts Its New Term

By Jordan Lorence Posted on: | September 26, 2018

On the first Monday in October, the Supreme Court will convene for its new term and begin hearing oral arguments. The Court has already accepted about half of the cases it will decide this year and will decide in the next few months which additional cases to add for the term.

ADF is in the process of briefing several cases that it is asking the Court to hear. In the meantime, the Court has considered some important cases at its first conference this week that could make this new term an important one for the Establishment Clause, religious liberty, freedom of speech, life, and family. Here are the cases to watch:

Bladensburg Cross Cases

Two parties have asked the Supreme Court to overturn a decision by a federal appeals court declaring unconstitutional a 93-year-old World War I memorial in Bladensburg, Maryland, because it contains a large cross.

The monument was built after the war by the American Legion and a committee of mothers to honor the 49 men of the local county who died in that war. The monument reflects the fact that crosses became associated with those who died in battle in World War I. Over the years, people from Maryland put other veterans’ memorials around the cross.

Because of population growth and new roads, the memorial ended up in a highway median. So the American Legion deeded the land to the State of Maryland. The American Humanist Association sued the government for having the cross on state land, and the federal appeals court ruled that the monument violated the Establishment Clause.

Two Planned Parenthood Defunding Cases

The first two cases challenging state efforts to defund Planned Parenthood have reached the Supreme Court. Planned Parenthood has filed a number of lawsuits across the nation challenging these state efforts not to fund the abortion provider.

The cases from Kansas and Louisiana raise a technical issue of whether federal law allows Planned Parenthood to challenge the states’ actions to end its Medicaid funding in federal court. The issue is whether the federal statute provides a private right of action. The lower federal courts ruled that federal law does allow Planned Parenthood to challenge the states’ actions, and also ordered the states to continue Medicaid funding to Planned Parenthood. If the Supreme Court grants review and reverses in favor of the states, then Planned Parenthood would lose its funding from those states, and would not be able to challenge the states’ decision in federal court.

Praying Coach Case

Joseph Kennedy lost his job as the assistant high school football coach in Bremerton, Washington because of his practice of going to the middle of the football field after the game, kneeling and praying for about 15-30 seconds. Sometimes, football players would join him. Coach Kennedy then began giving short motivational talks to them. The school ordered him to stop praying when students were around.

The school was concerned about violating the Establishment Clause and disregarded the freedom-of-speech rights of Coach Kennedy. Because he could not comply with this restriction, the school removed him from his coaching duties, and he sued the school district. The Ninth Circuit upheld the school district’s actions against the coach.

Three Title VII Cases

The Supreme Court has before it now three cases raising the issue of whether the ban on sex discrimination in Title VII includes “sexual orientation” and “gender identity.” Two cases raise the “sexual orientation” question, and one raises the “gender identity” issue. So far, Congress has rejected repeated efforts to add those classifications to Title VII, a law that deals with employment discrimination. Many unhappy with their lack of success before Congress have now gone to federal court asking for rulings redefining the word “sex” to mean “sexual orientation” or “gender identity.”

The case that raises the “gender identity” question is Harris Funeral Homes. That is an ADF case, which asks whether the word “sex” in Title VII means “gender identity.” A group of states, led by the State of Nebraska, filed an amicus brief encouraging the Supreme Court to hear the case. The opposition briefs to the ADF-filed cert petition are due October 24. I think we will see all three of these cases—the Harris Funeral Homes case and the two raising the “sexual orientation” question—considered together at a conference by the end of November.

Other important cases will likely be filed and considered for review before the Supreme Court before its term ends next June, so stay tuned.

Jordan Lorence

Senior Counsel

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

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