Supreme Court Identity Crisis?
I know we are in a pandemic and all, but if you’ve been following the Supreme Court decisions during the Summer of 2020, you may be scratching your head - part in confusion, part in skepticism. I mean, what is happening? The Court, with a conservative majority in the Trump era, is taking the pendulum for a ride. If you’re clueless or don’t care much about the law, this article will break down some of the headliners, which, in all reality, are likely to impact you or people you know in their daily lives. Since the law is important and something you should, even on a surface level, have some familiarity with, here’s what you need to know about a handful (not all) of the most recent decisions:
Religion
A state may not exclude church or religious schools from state-sponsored tuition aid programs available to other private schools. In Espinoza vs. Montana Dept. of Revenue, the Supreme Court, in a 5-4 decision written by Justice Roberts, found that a Montana law, which established a program that grants tax credits to those who donate to organizations that award scholarships for private school tuition programs, but prohibited families from using the scholarships at religious institutions was unconstitutional and in violation of the Free Exercise Clause (First Amendment) of the Constitution. Such evaluation by the Court is subject to “strict scrutiny,” the most stringent standard of review, which requires that a) there is a compelling state interest that is b) narrowly tailored in pursuit of such a compelling interest and c) applied in the least restrictive manner to achieve a purpose. The Court found that such a prohibition burdens not only the religious schools, but also the families whose children attend or hope to attend such institutions. Naturally, Justice Ginsberg (joined by Justice Kagan) dissented highlighting that the Montana Supreme Court had invalidated the program in its entirety, removing any burden on religious exercise because no one is required to give up their faith or decline sending their children to sectarian schools because the program has been invalidated. Justice Ginsberg further noted that “this Court has consistently refused to treat neutral government action as unconstitutional solely because it fails to benefit religious exercise.”
Religious educational institutions may utilize religious exemptions from federal anti-discrimination laws when hiring or firing teachers. Essentially, anti-discrimination laws do not apply relative to employment of teachers in religious institutions where certain exceptions apply. In Our Lady of Guadalupe Schools vs. Morrissey-Berru, the Court, in a 7-2 decision written by Justice Alito, highlighted that religious institutions maintain a certain level of autonomy relative to employment disputes involving individuals holding certain positions and applied the ministerial exception in the case due to the teachers’ role in conveying the religious message and carrying out the mission, noting the vital religious duties guiding educational principles even where a title doesn’t include terms such as “minister.” Justice Sotomayor wrote the dissenting opinion (joined by Justice Ginsberg), focusing on the stretched application of the ministerial exception to teachers who taught primarily secular subjects, lacked substantial religious titles and training, and were not required to be Catholic.
Employers may be exempt from providing no-cost contraceptives to employees if they indicate moral or religious objections under the Affordable Care Act (“ACA”) under the Trump Administration. The Court, in Little Sisters of the Poor Saints Peter and Paul Home vs. Pennsylvania (7-2 vote with an opinion drafted by Justice Thomas), noted that although the ACA does not require contraceptive coverage, the government mandated such coverage through interim final rules (“IFRs”), know as the contraceptive mandate. Despite the mandate, the Court found that the Departments of Health and Human Services, Labor, and Treasury had the authority to provide exemptions from the regulatory contraceptive requirements for employers with religious and moral objections. Justice Ginsberg dissented (joined by Justice Sotomayor), crafting a scathing review of the discrimination and burden on women such application of a Congressional mandate creates and permeates from an employment perspective.
Immigration
Although Trump has the authority to do so, he did not properly repeal Deferred Action for Childhood Arrivals (“DACA”) and failed to provide a reasoned explanation for such a repeal. In Department of Homeland Security vs. Regents of University of California, the Court, in a 5-4 decision drafted by Chief Justice Roberts, did not dispute the right of the President to repeal DACA, but rather noted that the explanation must be viewed critically to ensure that such a repeal is not on the basis of post hoc rationalization and found that the total rescission was arbitrary and capricious. A number of justices concurred in part and dissented in part.
Abortion
A state may not require that doctors performing abortions have admitting privileges at a hospital within 30 miles of the abortion clinic. In June Medical Services, LLC v. Russo, Interim Secretary, Louisiana Dept. of Health and Hospitals, a 5-4 decision with the opinion drafted by Justice Breyer, highlighted precedent which stated, “Unnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion impose an undue burden on that right” and are therefore considered constitutionally invalid. Whole Women’s Health v. Hellerstedt, 579 U.S. ____ (2016)(quoting Planned Parenthood of Southeastern PA vs. Casey, 505 U.S. 833,878(1992). The Louisiana Act under review in this case was almost identical to the Texas law enacted and struck down as unconstitutional by the Court in 2016, where it noted that conditions requiring admitting privileges common to hospitals have and will make it impossible for abortion providers to obtain conforming privileges for reasons that have nothing to do with the State’s asserted interests in promoting women’s health and safety. Such requirements have caused a substantial portion of abortion clinics to close in other states (such as Texas) creating serious issues and concerns for access to healthcare and a limitation on one’s ability to obtain the medical attention sought. Chief Justice Roberts (shockingly) concurred with the opinion (even though he dissented with the Whole Women’s Health decision in 2016) on the basis of stare decisis, which for you non-lawyerly types, is the latin term for “to stand by things decided” and is incredibly important for legal review of precedent. It is a theory of abiding by former precedents where the same points come under review in litigation “to keep the scale of justice even and steady, and not liable to waver with every new judge’s opinion.” Naturally, Justices Thomas, Alito, Gorsuch, and Kavanaugh dissented in additional opinions for varying, as well as similar reasons arguing about the application of stare decisis and res judicata, and noting the protection of women’s health in application of such law.
Voting
In its “faithless elector” decision, the Court found that a state can require its appointed electors to cast their ballots in the Electoral College consistent with the popular vote in that state. Justice Kagan, writing for the majority in a unanimous decision, in Chiafalo v. Washington, highlighted the history associated with the Electoral College and reasoned that “nothing in the Constitution expressly prohibits States from taking away presidential electors’ voting discretion as Washington does.” The opinion highlighted the fact that Article II only outlines the instructions on each State to appoint, in whatever way it sees appropriate, as many electors as it has Senators and Representatives and further noted the Electoral College’s “emergence as a mechanism not for deliberation but for party-line voting.”
Workplace Rights
Title VII of the Civil Rights Act of 1964, which outlaws discrimination in the workplace on the basis of race, color, religion, sex, or national origin, does, in fact, applies to and protects LGBTQ employees, as well. In a 6-3 decision drafted by Justice Gorsuch in Bostock vs. Clayton County, the Court interpreted the meaning of “sex,” as applied in Title VII, focusing on the uncontroversial meaning of individual - a particular being as distinguished from a class, species, or collection - finding, “[a]n individual’s homosexuality or transgender status is not relevant to employment decisions. That’s because it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.” Justices Alito and Thomas dissent noting that the analysis of the majority amounts to legislation and not merely interpretation of a statute, which is not an authority the Court possesses, and that Congress did not intend sexual orientation and gender identity to be included in the protections of the statute when it was passed in 1964.
Obviously, challenges and decisions are based on facts and it is on lawyers to argue the similarities and differences of cases as other matters arise. That is the beauty of precedence. However, some decisions greatly impact day-to-day life, including many of the decisions outlined above. We will have to keep a close eye on the Court, in particular Chief Justice Roberts, as important issues continue to be reviewed and decided on. Also, please take time to recognize the importance of voting. The Trump Administration had the opportunity to appoint not one, but TWO Supreme Court justices, for life terms. Take a moment to recognize that impact. Those 9 people hold the power to make many decisions based on interpretation of the law and as it sits now, the Court is conservative. Make sure you vote. The interpretation of freedoms and application of laws hinges on it. #mayGinsbergliveFOREVER
