The Supreme Court justices return January 5 for the second half of their current term, packed with many big decisions to come before the term ends in late June. Here are four big cases Alliance Defending Freedom is watching in 2018.
1. NIFLA – oral arguments in March 2018
This is our second case that the Supreme Court will hear this term, after Masterpiece Cakeshop. ADF is representing a number of pro-life pregnancy centers in California that have challenged a state law that requires pro-life centers licensed as medical facilities to post a notice that details how women can obtain state-funded abortions, and a phone number they can call to find out more information. This law violates the centers’ freedom of speech by compelling them to post a pro-abortion message that directly contradicts their pro-life mission and advocacy. Michael Farris, President, CEO, and General Counsel of ADF, will argue the case. We expect a decision in the case by the end of the term in late June.
2. Decision in Masterpiece Cakeshop
The justices heard oral arguments in Jack Phillips’ right-of-conscience case on December 5. The day after oral arguments, the justices met in their closed session, voted on the case, and assigned an author to write a majority decision. We don’t know how the justices voted or who is writing the majority decision. The justices will announce their decision sometime before the end of the term in late June. This will be one of the most-watched cases of the term.
3. Will the Supreme Court grant review in the Rowan County legislative prayer case?
ADF is watching what the justices do with this important follow-up case to ADF’s 2014 victory at the Supreme Court in Town of Greece v. Galloway, where the Supreme Court upheld the practice of opening town meetings with prayer given by a rotating list of local clergymen and other residents. The county board of Rowan County, North Carolina varied this practice by rotating through the members of the board. The American Civil Liberties Union challenged this practice, and the U.S. Court of Appeals for the Fourth Circuit initially upheld the practice, but on further review agreed with the ACLU that the practice violated the Establishment Clause. All 15 judges on the Fourth Circuit heard the case and ruled against it 10-5. But in a second case, the federal appeals court for Michigan, the Sixth Circuit, also heard a case raising the same issue and upheld the practice of county board members praying to open a meeting, by a 9-6 vote last September. Although only two federal appeals courts have heard this issue about prayer by the members of a county board since Town of Greece was decided, it is extremely rare for two full courts sitting en banc to rule opposite ways on the same legal issue, and by nearly identical votes. Look for the Supreme Court to take up this petition in January. If the Court grants review, oral arguments will likely be in April, with a decision in late June.
4. Will the justices revisit gender-identity legal issues in the Kenosha School District case?
Last term, the Supreme Court granted review in the Gloucester County School Board v. G.G. case to decide whether the Obama Administration could reinterpret Title IX’s ban on sex discrimination to include “gender identity,” and thereby force public schools to permit students to use the locker rooms and restrooms of the opposite sex. The Supreme Court ended up not hearing the case, instead sending it back to the lower courts after the Trump Administration rescinded the legal documents imposing that dubious interpretation of Title IX on the public schools last February. The next student privacy case up for consideration by the Supreme Court comes from Kenosha, Wisconsin, where a young female student who identifies as male sued the school district, demanding access to male privacy facilities. The U.S. Court of Appeals for the Seventh Circuit held in favor of the student, despite the school district having specific authority under Title IX to provide privacy facilities based on sex—being male or female—rather than a student’s self-perception of “gender.” One hitch in this case is that the student has graduated, so the claim for an injunction might be moot. But if so, the Supreme Court should vacate all of the lower-court decisions in favor of the student in this case. Look for the Supreme Court to decide whether to hear this case sometime in February. If the High Court decides to hear the case, oral arguments would not be until next fall.
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