The Supreme Court enters the second half of its term January 11 with many important cases yet to be decided and more waiting to see whether the justices will accept them for review.
Alliance Defending Freedom’s Kristen Waggoner will be arguing before the Court on January 12, on behalf of college student Chike Uzuegbunam, who was silenced by his college twice when he tried to share his faith on campus.
The Supreme Court has already heard oral arguments in one important religious liberty case, Fulton v. City of Philadelphia. The justices could add several more important cases, including an abortion case from Mississippi.
Here is what to watch for starting in January.
How long will COVID-19 keep Supreme Court oral arguments on the telephone?
Since last spring, the Supreme Court has been conducting oral arguments telephonically because of the COVID-19 pandemic. The Court announced that the cases set to be heard in January will be done over the phone. Although the Court has not yet said how it will conduct oral arguments in February, March, and April, many court watchers expect the justices to hear those cases over the phone.
The justices will probably not return to in-person oral arguments in the courtroom until the pandemic recedes. Now that people are beginning to receive the new COVID vaccinations, that might happen after the summer recess when the Supreme Court reconvenes on the first Monday in October 2021.
The Supreme Court will hear ADF’s Uzuegbunam case January 12.
ADF General Counsel Kristen Waggoner will argue before the Supreme Court January 12 in Uzuegbunam v. Preczewski. ADF represents a Christian college student, Chike Uzuegbunam, who was peacefully sharing his faith and distributing Christian pamphlets in a public area on his state college campus, Georgia Gwinnett College, in suburban Atlanta. College officials stopped Chike from doing so twice based on campus policies that blatantly restricted students’ freedom of speech. ADF filed a lawsuit on Chike’s behalf challenging these unconstitutional policies.
At first, the college defended its unconstitutional policies, then it abruptly revised them and asked the trial court to dismiss as moot Chike’s case, as if what happened to him did not matter since the policies had been changed and he had graduated. But what happened to Chike did matter. And government officials should not get a free pass when they violate constitutional rights. So ADF argued that the case was still live because Chike had asked for an award of nominal damages against the college officials. Nominal damages are the courts’ way of recognizing and holding government officials accountable when they violate an individual’s constitutional freedoms. The federal district court and appeals court ruled for the college and dismissed the lawsuit. ADF appealed to the U.S. Supreme Court, which granted review last July and will now hear oral argument on the case next week.
A wide range of organizations that frequently oppose ADF’s lawsuits, such as the American Civil Liberties Union (ACLU) and American Humanist Association, are supporting ADF’s legal position in this case because they encounter the same tactic in their lawsuits against governmental entities. We expect a decision in Uzuegbunam before the end of June, one that will hopefully reaffirm that government officials cannot get a free pass for violating someone’s priceless constitutional freedoms.
The Supreme Court may grant review in other ADF cases this term.
The Supreme Court has been considering whether to grant review in several ADF cases, which means we may see more ADF cases granted and argued later this spring or next fall.
One ADF case to watch is Thomas More Law Center v. Becerra. This case involves a requirement that charities raising money in California disclose their list of major donors to the California Attorney General, whose office has on occasion released this confidential information on the web, exposing donors to harassment from people who disagree with the charity’s beliefs. In November, the Solicitor General of the United States responded to a request by the Supreme Court to submit his views on what the Court should do with the case. The Solicitor General urged the Supreme Court to grant review, which makes this case a solid candidate for a cert grant. We should know sometime early in 2021 what the high court will do with this case
Another ADF case to watch is Bruni v. City of Pittsburgh. Bruni involves a challenge by pro-life sidewalk counselors to Pittsburgh’s 15-foot buffer zone that stops patrolling, picketing, or demonstrating on the public sidewalk outside the City’s two abortion facilities, including peaceful counseling and even prayer.
The federal appeals court took the unusual step of reinterpreting the ordinance to allow sidewalk counseling but then upheld the modified ordinance’s prohibition against other types of pro-life expression. ADF is arguing that the lower court lacked the authority to rewrite the ordinance and should have declared it unconstitutional in any event.
The Court has repeatedly postponed consideration of this case, which indicates that at least one justice is interested in granting review. Possibly the Supreme Court will decide what it will do with this case early in 2021.
The justices will decide a major free exercise of religion case by mid-2021.
By the end of June, the Supreme Court should issue its decision in Fulton v. City of Philadelphia. The justices heard oral arguments in the case on November 4, 2020. Our friends at Becket are representing Philadelphia foster parent Sharonell Fulton and Catholic Social Services before the Supreme Court.
This case could potentially reset and expand the constitutional standard courts use to examine cases under the Free Exercise Clause of the First Amendment. In 1990, the Supreme Court significantly limited the free-exercise protections of religious groups and individuals in a case called Employment Division v. Smith. But ADF and its allies involved in the case have asked the Supreme Court to return to the pre- Smith legal standard that gave more protection to religious liberty.
In Fulton, Catholic Social Services is challenging a rule requiring licensed foster care providers to place children with same-sex couples. The City of Philadelphia had licensed Catholic Social Services and 29 other organizations to find qualified families to take care of foster children, many of whom come from homes where they were suffering abuse or neglect.
Catholic Social Services and the other agencies thoroughly evaluate families to find ones qualified to care for foster youth. Each of the 30 agencies takes a different approach to finding families because of the many differences among foster children. And they frequently specialize in placing specific subgroups of children with families, like ones who speak only a language other than English, children with special needs, or children who have developmental disabilities. This means that the agencies frequently will refer families to other agencies that would be a better match for the families with particular strengths for caring for foster children. The agencies conduct a home study that involves interviews and research. When an agency certifies a family, it is the agency’s endorsement of a particular family for foster care, and the agency will work closely with that family if the City agrees to place a foster child in the family’s home.
Catholic Social Services, because of its Catholic beliefs about marriage, cannot certify same-sex couples as foster parents. Other agencies do certify same-sex couples, and Catholic Social services has never had a same-sex couple apply for certification as a foster family. If that ever happened, Catholic Social Services would refer them to an agency nearby that does certify same-sex couples.
Because of the agency’s Catholic beliefs about marriage, the City of Philadelphia has stopped placing children with families certified by Catholic Social Services, even though the City is desperate to find more available foster homes for children in need.
If the Supreme Court uses this case to overturn or scale back Employment Division v. Smith, it could have ramifications for many cases, including Washington floral artist Barronelle Stutzman’s case, Arlene’s Flowers. The justices are holding Arlene’s Flowers for the court’s decision in Fulton v. City of Philadelphia, which should come sometime in spring 2021. If the Supreme Court uses Fulton to expand religious protections under the Free Exercise Clause, it will be a major victory that could positively impact many present and future religious liberty cases, including Arlene’s Flowers.
Will the Supreme Court take an abortion case this term?
The Supreme Court has been pondering for several months whether to grant review in a case challenging a Mississippi statute that limits abortions after 15 weeks gestation. Since late September, the Court has rescheduled the case for consideration nine times. This is an unusually long time for the justices to take to consider whether to hear a case. The name of the case is Dobbs v. Jackson Women’s Health Organization, Inc.
The controversy in many cases that challenge state restrictions on abortion, like the Mississippi law in Dobbs, is about what legal standard federal courts are to use in evaluating those laws. In other words, how permissive or strict should federal courts be when examining these state laws regulating abortion? This issue arose because of the Supreme Court’s decision last term in June Medical Services v. Russo, striking down Louisiana’s law requiring abortion doctors to have admitting privileges at a local hospital.
The fragmented nature of the June Medical decision quickly triggered a division among the lower courts about what legal standard to use when deciding whether state regulations on abortion are constitutional. No opinion in June Medical commanded a five-justice majority. Chief Justice Roberts wrote a crucial controlling concurring opinion agreeing with four justices that the Louisiana law should be struck down based on the four-year-old precedent of Whole Woman’s Health v. Hellerstedt. But the Chief Justice agreed with the four dissenting justices that lower courts should not attempt to balance the benefits of a state law regulating abortion against the burdens it allegedly imposes. Pro-choice advocates often use such a balancing test to argue that state abortion laws should be invalidated.
Instead, Chief Justice Roberts and the four dissenting justices in June Medical agreed that state abortion laws that do not impose an “undue burden” on a woman’s right to abortion should be upheld no matter the balancing of benefits and burdens. This standard allows more pro-life state regulation of abortion, but is at odds with how some courts have interpreted the Hellerstedt decision.
So, after June Medical, which rule should lower courts use to evaluate whether a state law regulating abortion violates the Constitution?
Lower courts have quickly divided on this issue. This August, the U.S. Court of Appeals for the 8th Circuit allowed a number of Arkansas statutes regulating abortion to be enforced, based on the standard in Chief Justice Roberts’ concurring opinion. Federal district courts in Maryland and Texas disagreed, striking down abortion laws in other cases by using the balancing test.
Mississippi is asking the Supreme Court to clarify this important question in Dobbs v. Jackson Women’s Health Organization. If the justices decide to hear the case, it is possible that five justices would vote to clarify the “undue burden” standard in a manner that confirms that states have broader authority to regulate abortion before viability. This would be a significant victory for pro-life advocates.
The importance of these cases should encourage us to pray for the justices and their law clerks—that the justices would make wise decisions in these important cases and the others they will consider as the term unfolds.
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