Power

Amid Uncertainty, Supreme Court Term Begins With Religious Liberties and Voting Rights Cases

Can the Supreme Court go an entire term with only eight justices? We may be about to find out.

More than 200 days have passed since Republicans promised to block Merrick Garland’s nomination to the Supreme Court, and they have made good on their word. The Roberts Court, however, does not have the luxury of waiting around. Mark Wilson

The U.S. Supreme Court term opened Monday not with a marquee of high-profile cases as it did last year, but with former Justice Antonin Scalia’s seat still vacant: a visible reminder of Republican obstruction that’s on the edge of becoming a constitutional crisis.

More than 200 days have passed since Republicans promised to block Merrick Garland’s nomination to the Court, and they have made good on their word. The Roberts Court, however, does not have the luxury of waiting around. The justices still need to accept, and resolve, issues of significant constitutional importance—including civil rights disputes, criminal justice reform, and limits of governmental power. And with the current justices’ ideology, outcomes of those issues will likely be evenly split 4 to 4, which generally means no resolution at all.

In those instances, the lower appellate court decision is upheld—as was recently the case with the fight over President Obama’s immigration detention orders—which neither sets a national precedent nor fully resolves the issue at hand. Or those split decisions result in conflicting decisions from across the country left in place with direction, sowing confusion about what exactly the law is or requires. See, for example, the Court’s punt last term in Zubik v. Burwell, a series of cases brought by the Little Sisters of the Poor and others challenging the process for accommodating religious objections to the birth control benefit in the Affordable Care Act.

So what, then, can we expect from this term? Though the slate isn’t yet entirely apparent, there is at least one significant case on government funds going directly to churches; possibly more voting rights cases; Gavin Grimm’s plea to his school district to stop discriminating against him on the basis of his gender identity; and a case questioning whether private business owners can raise religious objections to serving LGBTQ people.

The Roberts Court is once again jumping into the religious liberties fight, agreeing to hear a significant case involving state funding of religious activity: Trinity Lutheran Church of Columbia v. Pauley

Trinity Lutheran Church in Columbia, Missouri, runs a religious preschool and daycare program that also includes some sectarian teaching. Trinity applied for one of the state’s grants to improve the children’s playground, but was rejected because it is a religious organization and the Missouri Constitution explicitly prohibits state funding from directly going to churches and their activities.

The Alliance Defending Freedom sued the state on Trinity’s behalf, arguing that denying the request on the basis of Trinity’s status as a religious entity violates the U.S. Constitution’s Equal Protection and Free Exercise Clauses. According to Trinity, Missouri’s grant program targets religion for disadvantageous treatment, which can be justified under the federal clauses only if the grant program is narrowly tailored to achieve a compelling government interest. Trinity argues Missouri has no such compelling state interest. Trinity’s lawyers also argue that the program forces applicants to choose between their religious beliefs and receiving an otherwise generally available public benefit, which denies them full and equal participation in the community and violates the Free Exercise Clause.

Even the conservative Eighth Circuit Court of Appeals rejected Trinity’s arguments, noting the organization could not show state officials that it would not use the taxpayer-funded playground for religious purposes.

Another important religious liberties case hanging around the Roberts Court is Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, which pushes the limits of how far religious objections can be used to discriminate against others in the marketplace.

Jack Phillips owns Masterpiece Cakeshop and is also deeply opposed to LGBTQ equality, an opposition he grounds in his Christian faith. When approached by two men to design and make a wedding cake for their local celebration, Phillips refused, saying his religion disapproved of their marriage, so he would not create wedding cakes for any same-sex couples.

However, Colorado prohibits discrimination in public accommodations on the basis of sexual orientation, so a judge ordered the bakery—as a business open to the general public—to end its policy of discrimination. Phillips, represented by the Alliance Defending Freedom, argued that creating and baking a wedding cake is an expressive act, and baking cakes for same-sex couples would mean he found those relationships as morally acceptable. Therefore, Phillips claims, Colorado’s anti-discrimination law is compelled speech, which violates the First Amendment.

The Colorado Court of Appeals disagreed, concluding that operating a public bakeshop that designs and sells wedding cakes in compliance with anti-discrimination laws does not convey a celebratory message by the baker himself. According to the Colorado Court of Appeals, any pro-equality message that someone might interpret from the cake would be attributed to the couple, rather than to the baker. In addition, the court ruled that simply obeying a law does not express agreement with it.

The Supreme Court has not yet decided if it will take this case, but if it does it will be a big one.

One of the most-watched potential cases for the Court’s term involves Gavin Grimm, a transgender Virginia student who sued his school board after it initiated a policy that requires students to use bathrooms consistent with their biological sex rather than gender identity.

Grimm is the only openly transgender student at his school. The American Civil Liberties Union sued on his behalf, arguing the school board’s policy violated Title IX of the U.S. Education Amendments of 1972, which prohibits discrimination on the basis of sex in any educational program or activity receiving federal funding. Under the Obama administration, the Department of Education’s Office of Civil Rights interpreted this provision in Title IX to require schools providing separate boys’ and girls’ bathrooms to generally treat transgender students consistent with their gender identity.

Initially, a district court rejected Grimm’s argument and ruled in favor of the Virginia school district. But on appeal, a three-judge panel of the Fourth Circuit reversed the lower court and held that Title IX can be interpreted as the Department of Education does. The school district has appealed this ruling to the Roberts Court, which has stayed the appeals court ruling while it decides whether to take the case. That means for now, the district’s policy remains in place, and Grimm is forbidden from using the boys’ bathroom.

Meanwhile, the Roberts Court has already agreed to hear two cases challenging racial gerrymandering that came out of the 2010 election, and it might take up a direct challenge to portions of North Carolina’s draconian voter suppression law.

The first of these is the North Carolina case McCrory v. Harris. A panel of federal judges concluded in February this year that two of the congressional districts in the state created after the 2010 Census are racial gerrymanders: districts designed to dilute the vote of people of color in violation of the Equal Protection Clause.

In Bethune-Hill v. Virginia State Board of Elections, by contrast, a federal court ruled that changes to 12 state legislative districts did not violate the Equal Protection Clause and were not improperly racially motivated.

Then there’s N.C. State Conference of the NAACP v. McCrory, a challenge to portions of North Carolina’s voter ID law.

In July, a three-judge panel of the Fourth Circuit Court of Appeals reversed a lower federal court and struck down North Carolina’s voter ID requirement, as well as provisions curtailing or eliminating early voting, same-day registration, out-of-precinct voting, and preregistration of 16- and 17-year-olds. The court concluded that not only did the law have a racially discriminatory effect, it was intended to make voting harder for Black voters. The judges concluded that provisions of the new law “target[ed] African Americans with almost surgical precision” without remedying the alleged problems with voter fraud that the state tried to use as justification.

North Carolina asked the Supreme Court to stay the Fourth Circuit’s decision while it prepared its petition, indicating the state plans to appeal. That request was denied, but doesn’t mean the Court won’t take up the case, should North Carolina file for review.

So, while the Court doesn’t currently have the kind of big-name cases on abortion, affirmative action, and birth control that it did last term, that doesn’t mean it’ll be a quiet one. If anything, this year could be even more volatile, given the fact that the Court may be down a justice for a long time—possibly the entirety of the term. This could delay the resolution of important issues, like just how far states can go in restricting voting rights and whether religious beliefs can be used as a sword for cutting back gains for the LGBTQ community.

Grinding the government, especially the courts, to a halt is not just a failure of leadership; it is intentionally pushing this country to a point of no return. Republicans have no incentive to confirm Merrick Garland, should they maintain control of the Senate in November. And should they lose the presidency, that obstruction is only going to amplify. So who knows when we’ll get a ninth justice. But until then, the Roberts Court is going to have to find a way to continue functioning, even if the Senate can’t.