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With Justice Brett Kavanaugh now on the bench this Spring session, many are confident the high court will take more conservative action.
By Gerald J. Russello, National Catholic Register, 5/13/19
The U.S. Supreme Court has a number of cases that Catholic and other believers should keep an eye out for, touching on areas from religious liberty to abortion.
Some judiciary watchers are confident that, with the confirmation of Justice Brett Kavanagh last year, the court will move in a more decidedly conservative direction. However, much depends on such technical issues as how the cases are presented to the high court and whether a decision on a narrower ground can win the day.
In the area of religious liberty, a case pitting the American Legion against the American Humanist Association is the one to watch this term. This past February, the court heard arguments over whether a Bladensburg, Maryland, World War I memorial cross, the so-called “Peace Cross,” violated the First Amendment.
The federal appellate court ruled that the cross, on originally private land but now on land owned by the government, violated the Establishment Clause because it “endorsed” religion. The decision is wrong-headed not just as a matter of law but of policy, as well. The cross dates from 1919 and was put up by mothers of sons lost on European battlegrounds who could not be buried. The cross has an accompanying plaque that lists the names of all the Americans who lost their lives, ranging from members of prominent white Washington families to descendants of slaves.
The cross represents the best expression of our civil religion. To tear it down (or rip the arms off the cross, as one judge suggested, to eliminate the “religion” problem) would simply erase that memory and the vision of a country united in sacrifice.
Moreover, the case would likely not be applicable simply to that one cross. The nation is covered with religious memorials of various kinds on public cemeteries. Such memorials do not “establish” religion within the meaning of the First Amendment, which does not mention endorsement at all. Rather, such monuments reflect the faiths of Americans, which should not be deleted simply because later generations may not share all of those faith commitments.
One interesting aspect to the oral argument was whether simply to be offended by something — here, the Peace Cross itself — is enough to allow people to sue to have such “offensive” symbols removed. Justice Ruth Bader Ginsburg raised that issue during oral arguments by saying that disputes over the religion clauses are “the only area I can think of like that where we allow people to sue over an offense because, for them, it is too loud” or offensive in some way.
The Supreme Court is unlikely to reject explicitly its previous “endorsement” test developed under a 1971 case called Lemon v. Kurtzman. That test has long been criticized for being too ambiguous and arbitrary and for failing to recognize that many Americans are religious and that some expressions of public religiosity have a long pedigree in our nation. However, it is unlikely that the court will order the cross to be taken down, given its history and long-standing presence without objection.
Expect also some guidelines in the decision about how to treat other religious monuments on public land; oral arguments contained substantial discussion about the crosses and Stars of David at Arlington National Cemetery. The decision in the Peace Cross is likely to be issued in the next few weeks.
Perhaps the most controversial case on the docket is Department of Commerce v. New York, for which the court heard arguments in April and is expected to turn around a quick decision by June. The case involves the reinstatement of a question about citizenship in the census, which has not been included since 1950.
The constitutional requirement for a census refers to “persons” not “citizens,” and two lower courts have already struck the question down. However, the precise issue the high court has been asked to consider is whether the question was issued pursuant to a 1946 law called the Administrative Procedures Act.
It is likely that a conservative majority will rule on the narrower process question and not get to whether the citizenship question was intended to dissuade noncitizen immigrants from being counted, which may result in fewer members of Congress apportioned to those districts.
Other cases coming up on the docket that have not yet been argued should also be on Catholic radar.
In April, June Medical Service LLC, petitioned the court to hear its challenge to a Louisiana law. The law required doctors who perform abortions in the state to have admitting privileges at a nearby hospital. The petition argues that this law imposes an undue burden on the right to an abortion, in part because such a requirement will reduce the number of abortion facilities operating in the state.
The Supreme Court had earlier issued a stay on implementation of the law, with Chief Justice John Roberts joining the majority granting the stay. About three years earlier, after the death of Justice Antonin Scalia, the court struck down a seemingly similar Texas law, so this case may provide an opportunity for the court to revisit the issue. If the court agrees to hear arguments in the fall, a decision would be issued sometime next year. The question of “undue burden” was also at issue in the contraceptive-mandate cases; once such a burden is established, the state has to present its compelling interest in the law and show it has satisfied that need by the least restrictive means available. So it will be interested in seeing how Louisiana frames its state interest.
The Supreme Court has already accepted for argument three cases, all dealing with whether Title VII of the Civil Rights Act of 1964, which bars discrimination in employment, among other things, “because … of sex” includes sexual orientation or gender identity.
Each of the cases involves persons terminated from their jobs allegedly because of their orientation or gender identity. The Equal Opportunity Employment Commission has ruled that such claims for discrimination can be brought under Title VII.
At least one lower federal court has agreed, ruling that Title VII covers these cases, because discrimination, the court held, on the basis of orientation is a “subset” of the broader prohibition on discrimination because of sex.
The court is likely to confront arguments that clash a “plain meaning” of Title VII along with expectations at the time as to what the word “sex” meant against more general arguments based on the strong American inclination toward equality and against any perceived unfairness.
When Justice Anthony Kennedy was on the Supreme Court, before he resigned last summer and the vacancy was filled by Justice Brett Kavanaugh, the odds were higher that Title VII would be understood in that broader way; now it is less clear. For the discrimination cases, one would expect Justices Samuel Alito, Clarence Thomas, Kavanaugh and Neil Gorsuch as well as Chief Justice Roberts to stick to the traditional meaning of the word “sex”; however, as in the “Obamacare” case King v. Burwell, Roberts’ decision upholding the Affordable Care Act reflected his sense of the court’s institutional position and its role as a stabilizing force. If he can be convinced that rejecting the EEOC’s ruling would be disastrous, he might join an opinion holding to the contrary.
Gerald J. Russello is an attorney and editor of The University Bookman.