November 11, 2021
At the beginning of the current Supreme Court term, Sutherland previewed four religious freedom cases the court might be considering.
Ramirez v. Collier
The court has just heard the oral argument in one of them, Ramirez v. Collier. This case involves a death row inmate who has asked the Court to review Texas’ decision not to allow a pastor to pray with him and lay on hands at his execution. SCOTUSblog explains this case “will be the first time that they will rule definitively on the rights of inmates to receive religious comfort and guidance in their final moments.”
One theme in the questioning at oral argument was the risk of courts being flooded with requests for accommodations that would be difficult to manage (like having three people at the execution instead of only one as currently allowed) in the event of an unruly bystander. Another was the history of making accommodations for prisoners (particularly those being executed), without apparent difficulty to this point. The questions suggest the court will have to address whether the outcome of this dispute will apply categorically to all other executions or will rather be treated as a guideline for case-by-case determinations in the future.
A caveat is always in order in discussions of oral argument. These arguments provide the justices with an opportunity to ask questions about potential rulings and do not necessarily indicate how a particular justice is likely to rule in a case. For instance, a justice might ask a difficult question of attorneys from one side that could be interpreted as challenging that party’s arguments but may actually reflect a desire to demonstrate that the party has a good response.
Carson v. Makin
The court has scheduled oral argument in another religious freedom case, Carson v. Makin, for Dec. 8. The case, which involves whether Maine can provide a scholarship for attendance at private schools but exclude those that are religious, has gotten lots of attention.
The federal government, a handful of other states, and the National Education Association are part of the dozen groups that filed briefs in support of Maine. The 32 groups that filed briefs supporting the parents include other states, a dozen U.S. senators, and The Church of Jesus Christ of Latter-day Saints.
Dignity Health v. Minton
The court has declined to take one case it was considering: It involved a Catholic health care system that declined, on conscience grounds, to perform a hysterectomy for a transgender patient. The California Supreme Court had ruled Dignity Health could be sued for discrimination, and since the Supreme Court declined the case, a discrimination lawsuit can now proceed. Three of the justices, Clarence Thomas, Samuel Alito and Neil Gorsuch, would have taken the case.
Roman Catholic Diocese of Albany v. Emami
The other case previewed in September, Roman Catholic Diocese of Albany v. Emami, involved a New York regulation that required employers to cover abortions in their health insurance plans. New York courts had upheld the regulation and Diocese of Albany asked the Supreme Court to take its appeal. The court declined the appeal but vacated the state court decision. This means the lower court ruling no longer applies, and the lower courts will have to begin the process again. The same three justices who would have taken Dignity Health case would have taken this one as well.
The court specifically directed the lower courts to consider last year’s Supreme Court decision in Fulton v. Philadelphia. That case held “that Philadelphia’s refusal to make referrals to a faith-based foster-care agency that refused to certify same-sex couples as potential foster parents violated the Constitution.” The court’s order in Diocese of Albany suggests the lower courts will need to determine whether New York is singling out religious employers for unfavorable treatment.
This does not necessarily end the Supreme Court’s involvement. However the lower court rules, someone is likely to appeal to the Supreme Court again.
These recent examples are a good illustration of the important role the Supreme Court has. In deciding which cases to take and which it avoids, it modifies the law in practice if not in fact.
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