Analysis Law and Policy

Six Supreme Court Cases Equality Advocates Should Watch This Term

Jessica Mason Pieklo

The Roberts Court begins its latest term with a docket full of cases that should make many of us nervous.

When the U.S. Supreme Court convenes Monday, it will be the beginning of Chief Justice John Roberts’ tenth year at the helm, and with an unfinished docket of cases already packed with hot-button issues, his influence on the Court is apparent.

The Supreme Court, like it did in its most recent term, will venture into issues of religious liberties and free speech, in addition to tackling racial gerrymandering and pregnancy discrimination in the workplace. It’s a daunting docket for equality advocates and could be one of the most radical years for the Roberts Court yet.

The Supreme Court denied review in all of the pending marriage equality cases, which makes marriage equality the law of the land in Utah, Wisconsin, Indiana, Oklahoma, and Virginia. It means those states with same-sex marriage bans within the Fourth, Tenth, and Seventh Circuit Court of Appeals will soon have those bans fall.

Roberts and his conservative colleagues are picking up right where they left off last term: by radically, albeit incrementally, rolling back the historic achievements of the New Deal and Civil Rights eras.

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Here’s our list of cases to watch, including those that haven’t yet made it on the Court’s calendar, but still could.

1. Holt v. Hobbs

The second day of the Roberts Court term brings the first big test for religious liberties in the wake of the Hobby Lobby decision. At issue in Holt v. Hobbs is whether an Arkansas Department of Correction’s grooming policy that bans all facial hair for inmates, arguably for security purposes, violates the Religious Land Use and Institutionalized Persons Act (RULPA) of 2000, a federal law that requires accommodations for prisoners’ religious practices in some settings.

Arkansas inmate Gregory H. Holt, who goes by the name Abdul Maalik Muhammed and identifies as a devout Muslim, is serving a life sentence for burglary and domestic battery. The prison in which Holt is incarcerated bans all facial hair for inmates, with an exception for inmates with skin conditions who wish to grow a quarter-inch beard.

Holt had requested an accommodation from that policy to allow him to grow a half-inch beard, in accordance with his faith. Correctional officers denied his request and Holt sued, arguing that RULPA grants him the right to grow the half-inch beard. The federal trial court denied his claims, and the U.S. Court of Appeals for the Eighth Circuit affirmed. Holt’s attorneys appealed to the Supreme Court, which, after granting a temporary injunction allowing Holt to wear his beard, agreed to review the case.

2. Alabama Legislative Black Caucus v. Alabama and Alabama Democratic Conference v. Alabama

This is a pair of appeals that tests the constitutionality of a state legislative redistricting plan that challengers claim “packs” more Blacks into districts that already have Black majorities. This redistricting, according to the appeals,  results in too little influence for Blacks in the legislature.

The Alabama Black Caucus and other Democratic lawmakers in the state claim that the redistricted map created in 2012 illegally limits Black voting strength and makes it harder to elect Democrats outside the majority-Black districts.

A panel of three federal judges ruled 2-1 last year that the districts were not discriminatory and violated neither the Voting Rights Act nor the Constitution. In the lower court decision, U.S. Circuit Judge Bill Pryor wrote that “the overwhelming evidence in the record suggests that black voters will have an equal opportunity to participate in the political process the same as everyone else.”

He was joined by U.S. District Judge Keith Watkins. U.S. District Judge Myron Thompson, the only Black judge on the panel, dissented in a detailed and powerful opinion.

3. Elonis v. United States

This case involves Anthony Elonis, a Pennsylvania man convicted in 2010 under federal law for posting a series of threatening messages on his Facebook page. Elonis has challenged his conviction arguing that his messages about killing his ex-wife and shooting up an elementary school were not “true threats,” but rather protected free speech. (He claimed they were rap lyrics.)

The courts, in trying to find the balance between responding to legitimate threats and unconstitutionally stifling speech, have made a mess of First Amendment law. The Roberts Court is running headlong into this sticky legal issue.

Federal courts have split on whether that the speaker intended the statement to be a threat or whether a “reasonable person” would find the statement threatening. The Roberts Court, in granting a review, is set to look at both questions of whether the “subjective intent” of the speaker governs generally for purposes of the First Amendment, but also what standard applies to the statute under which Elonis was convicted.

This statutory question was added by the Supreme Court when it decided to grant review, and leaves open the possibility of a narrow ruling, which is good because a broad ruling from the Court could have far-reaching consequences that could affect the strategies of anti-choice activists who have used violence and intimidation as tools in the abortion rights battle.

Extreme anti-choice advocate Angel Dillard has claimed her letter promising explosives under the car of Kansas abortion provider Dr. Mila Means did not violate the Freedom of Access to Clinic Entrances (FACE) Act because it wasn’t a “true threat.” Dillard sent the letter to Means to dissuade her from performing abortions in Wichita after the murder of Dr. George Tiller.

Dillard also sought to exclude her jailhouse communications with Tiller’s confessed murder, Scott Roeder, as protected by a “ministerial exception,” claiming she was visiting Roeder to minister to him. In another case, Mark Holick, a pastor who created and distributed a “wanted”-style poster featuring the picture and home address of a Wichita abortion clinic operator, argues his posters were not threats but rather protected speech.

4. Young v. United Parcel Service 

The Roberts Court in December will hear arguments considering just how far employers must go in accommodating pregnant workers.

Peggy Young, a former UPS employee, became pregnant and was told by her doctor not to lift more than 20 pounds during the first 20 weeks of her pregnancy. Young approached UPS for a light-duty assignment as a temporary accommodation for the lifting restrictions related to her pregnancy. UPS refused her request, saying the company had a “pregnancy-blind” policy of giving light-duty job assignments to people who are injured on the job, those who are disabled under federal disability rights law, or those who have lost their federal driver certification.

Because UPS wouldn’t accommodate Young, she was forced to take unpaid leave for the rest of her pregnancy and, as a result, lost wages and her health insurance coverage just a few months prior to the birth of her child.

Young sued, claiming UPS’s refusal to offer her a light-duty assignment to accommodate her pregnancy violated the Pregnancy Discrimination Act, which requires employers to treat pregnant employees “similar in their ability or inability to work” as non-pregnant employees when deciding accommodations. Young and her attorneys argued that UPS’s “pregnancy-blind” policy violated the law, because by denying Young an accommodation available to others, it treated Young, a pregnant worker, differently than her non-pregnant coworkers who were similar in their inability to work.

While Young was litigating her claims, Congress amended another law, the Americans With Disabilities Act, to require employers to make reasonable accommodations for a broad range of temporary disabilities that would affect Young’s claims. However, those amendments were not in place when Young sued, leaving open the question of if, and how, the amendments to the Americans With Disabilities Act work with the Pregnancy Discrimination Act to require employers to accommodate workplace requests like Young’s.

That is the question the Roberts Court is set to answer.

5. Williams-Yulee v. Florida Bar 

The Roberts Court couldn’t resist taking another campaign-finance case, only this term we’ll see the ripple effect of the court’s 2010 Citizens United decision on judicial elections.

This case involves the question of whether states can prohibit judicial candidates from personally soliciting campaign donations. Initially brought by a Florida defense attorney running for county judge, the case comes at a time when more judges and judicial candidates have had to raise higher sums than ever before.

Since 2000, state supreme court candidates have raised $263 million, and 20 states have seen shattered records for judicial election spending. Not surprisingly, states with high-profile anti-abortion and anti-marriage equality campaigns like Iowa, Florida, North Carolina, and Tennessee have some of the highest amounts of political spending in judicial elections.

Thirty states have laws or rules of conduct prohibiting judicial candidates from personally soliciting campaign contributions in some fashion, including blanket bans on solicitations, to bans on seeking endorsements of political interest groups. Of those 30 personal solicitation bans, 22 have some kind of stand-alone, blanket prohibition like the one at issue in Williams-Yulee, which means this case provides the Roberts Court with a unique opportunity to strike down an entire infrastructure of campaign laws.

6. Texas Department of Housing and Community Affairs v. The Inclusive Communities Project

This is an important test of the Fair Housing Act (FHA), one of the cornerstones of legislation to come from the Civil Rights movement of the 1960s and ’70s. The Fair Housing Act prohibits racial discrimination by landlords, homeowners, state housing authorities, and others, and this case concerns the kind of proof plaintiffs need to show that the government and/or developers are discriminating in housing and redevelopment laws.

Under most civil rights statutes, one way plaintiffs can show unlawful discrimination is through statistical evidence that shows a policy or law has a disproportionately adverse effect for minorities. These claims, known as “disparate-impact” claims, essentially allow a plaintiff to show discrimination without meeting the extremely difficult bar of proving the law or policy intended to discriminate against minorities.

The Department of Justice has used disparate impact claims under the FHA to go after banks and lenders for their racially discriminatory lending practices during the sub-prime mortgage boom and bust. This case involves development policies for subsidized low-income housing in Dallas and claims that tax credits for such housing were approved only in low-income and minority-heavy neighborhoods, while denying similar tax credit applications in majority-white and majority-Hispanic neighborhoods.

Conservatives have tried for years to gut the FHA, and this case could give them just that opportunity. Community groups challenging the Dallas development policy won at both the lower and appeals courts. Instead of appealing to the Roberts Court on the merits of the case—that is, whether or not the Dallas policy had a disparate impact on minorities—attorneys defending the Dallas policy argue the statute shouldn’t recognize disparate-impact claims at all.

Those six cases alone make this term one to watch with the Roberts Court. But the term could, and likely will, get more interesting.

It is possible the Supreme Court will take up cases involving truth-in-advertising requirements for deceptive crisis pregnancy centers, as well as voter ID laws. Meanwhile legal challenges to federal subsidies for Obamacare, the accommodation available for religiously affiliated nonprofits to the birth control benefit, as well as the recent wave of anti-abortion hospital admitting privileges requirements are lurking in the shadows and could still find their way before the Roberts Court this term.

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