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US News: Another year, another Obamacare case goes before the Supreme Court. But this time, everything is upside down.
The part of the Abercrombie & Fitch case that had the Supreme Court Justices laughing at their own jokes
IJ Review: Abercrombie and Fitch (A&F) is no stranger to controversy surrounding their hiring practices in regard to religion and body composition. The latest case to be brought to the Supreme Court is due to alleged religious discrimination of A&F applicant, Samantha Elauf.
Religion Clause: The full transcript of this morning’s Supreme Court arguments in EEOC v. Abercrombie & Fitch Stores is now available from the Court’s website. AP reports on the oral arguments in the Title VII religious accommodation case, saying that the Justices seemed to support prospective employee Samantha Elauf’s position. At issue is the kind of notice that is needed to be given to an employer before its obligation to try to accommodate religious exercise is triggered.
Religion Clause: The court rejected Pellegrino’s free exercise claim, saying that at most he suffered an “insubstantial inconvenience” for refusing to stand. The court also rejected Pellegrino’s claim that his refusal to stand was protected expressive conduct.
Baptist Join Committee for Religious Liberty: Wednesday morning, the U.S. Supreme Court will hear oral arguments in the case of EEOC v. Abercrombie & Fitch Stores, Inc. The EEOC claims the clothing retailer violated the civil rights of a Muslim woman, Samantha Elauf, by denying her job because of her religious headscarf. Abercrombie counters that they were not aware Elauf was wearing the scarf for religious purpose because she did not explicitly inform them.
SCOTUS Blog: Can a retail store’s dress code for its sales clerks get the management into legal trouble? Potentially, it can, if the code conflicts with the religious scruples of a worker seeking a job — at least if the store can find a way to respect those beliefs without seriously disrupting its retailing approach.
National Law Journal (Subscription required): The scope of the right to marry appeared to divide the U.S. Supreme Court on Monday—not in the familiar context of same-sex marriage, but in the long struggle of an American citizen to bring her Afghan husband to the United States.
National Journal: The court will hear oral arguments Wednesday in the case of Samantha Elauf, who was denied a job at an Abercrombie store because of the headscarf she wears as a practicing Muslim. Abercrombie says it didn’t have to make an exception to its “look policy” for Elauf because she didn’t specifically ask for one—while her lawyers say it shouldn’t be up to job candidates to ask for religious accommodations.
Religion News Service: Using a new search engine, we searched for oral arguments that mention the religion clauses of the First Amendment (the Establishment Clause, and the Free Exercise Clause). The graphs below show the number of cases mentioning each clause per year, and then the total number of cases since 1950.
Religion Clause: Viewed in context, it is apparent that the legislative intent was for the exemption to apply to members of religious bodies which, like the Church of Christian Science, are established institutions with doctrines or customs that authorize healers within the church to perform spiritual treatment via prayer in lieu of medical care. Because the exemption is effectively limited to members of religious groups that closely resemble the Christian Science Church, the terms at issue are not so vague that the scope of the exemption “cannot be ascertained.”
Alliance Defending Freedom: Last week, I shared with you some of the good news of important victories your prayers and support have enabled Alliance Defending Freedom to have a part in across the U.S. But we’ve also been blessed with encouraging wins in courts overseas – wins that have great potential to influence U.S. jurists, protect religious liberty and national sovereignty, and perhaps even favorably impact similar cases in our own country in the years ahead.
National Law Journal (Access via Google): A weighty discussion at Yale Law School on the role of religion in public service suddenly turned lighthearted during a recent exchange between U.S. Supreme Court Justice Clarence Thomas and his mentor, former U.S. senator John Danforth.
National Law Journal (Access via Google): “I don’t want to make any predictions,” Ginsburg told MSNBC reporter Irin Carmon in an interview that aired Monday night. “But precedent is important in this court.”
Red State: Insofar as I know, no constitutional issue has been raised, briefed or argued in King v. Burwell in any of the courts below; so this may all be too much to hope for. But now that the Supreme Court has accepted certiorari, here is an entry from that perhaps-too-much-to-hope-for category.
Talking Points: Of the many pro-Obamacare arguments that government lawyers are making to save the law from the Supreme Court, one stands out as particularly tailored to winning the crucial vote of Justice Anthony Kennedy.
One News Now: Trinity Western University in British Columbia Bar has sued associations in three Canadian provinces because they have voted to not recognize attorneys who graduate from the Christian university’s future law school. This week, the Nova Scotia Supreme Court ruled that that province’s bar association is out of line and is discriminating on the basis of religion.
National Law Journal (Access via Google): “This acquiescence may well be seen as a signal of the court’s intended resolution of that question,” Thomas wrote. “This is not the proper way to discharge our Article III responsibilities. And, it is indecorous for this court to pretend that it is.”
Deseret News: An example of this can be found in California, where the state’s Supreme Court unanimously voted to “prohibit state judges from belonging to the Boy Scouts on grounds that the group discriminates against gays.” This ruling comes in spite of the fact that the Boy Scouts of America allows all young men to fully participate regardless of sexual orientation, although restrictions for Scout leaders remain.
Breakpoint: Freedom of religion, freedom of association — these are rights guaranteed by the Constitution. But I guess a guarantee isn’t what it used to be.
Politics CheatSheet: 2015 is set to be a major year for the Supreme Court of the United States.
National Law Journal: U.S. Supreme Court Justice Ruth Bader Ginsburg said Wednesday that young women may have to fight to preserve abortion rights for the poor in the face of new limits on the right to choose.
National Law Journal: U.S. Supreme Court Justice Elena Kagan on Tuesday urged criminal defense trial lawyers to turn over their cases to appellate specialists when they get to the high court.
PBS (AP): Two Supreme Court justices who once seemed open to the idea of cameras in the courtroom said Monday they have reconsidered those views, dashing even faint hopes that April’s historic arguments over same-sex marriage might be televised.
The New York Times: Lawyers on average are much more liberal than the general population, a new study has found. But judges are more conservative than the average lawyer, to say nothing of the graduates of top law schools.
Get Religion: Alongside that big U.S. Supreme Court case on same-sex marriage, another 2015 showdown merits journalistic attention.
CNN: “The term went from being one of the more uneventful terms in recent years to potentially one of the biggest ones in a generation” says Supreme Court expert Amy Howe who is the Editor of Scotusblog.com.
Deseret News: The travails of a Canadian Christian university’s quest to establish a law school may reverberate in the United States as conflicts over legalizing same-sex marriage continue, some educators say.
Space enough for all: Nova Scotia Supreme Court makes decision on Trinity Western University Law School
Canadian Council of Christian Charities: People disagree about many things in a pluralistic and multicultural society such as Canada. But perhaps the most passionate debate in recent years is found among those caught in a controversy involving religion and sexuality.
National Law Journal: As news media and others ask the U.S. Supreme Court for video and audio coverage of upcoming blockbuster arguments this term, one justice—Elena Kagan—admitted Monday to being “very conflicted” about cameras in the high court.
The Daily Signal: Last week, the California Supreme Court voted to bar any California state judge from belonging to youth organizations that “invidiously discriminate,” apparently with the Boy Scouts of America in mind. This policy is the latest example of ideologues using government coercion to force public servants to conform their private lives to government ideology—or resign from public service.
Law and Religion Australia: In a previous post I noted the ongoing controversy over whether Trinity Western University, in British Columbia, Canada, can train lawyers who will be able to practice in Canada. TWU as a Christian University requires its students to agree to comply with a Code of Conduct, part of which bans all sexual intimacy outside the traditional marriage between a man and woman.
Judge’s tough decision lectures about church rights and protections from ‘power of the state’ in huge win for Christian law school battling for survival
The Blaze: The court ruled that the Nova Scotia Barristers’ Society, which regulates legal practices in the province, does not have the right to issue such a denial, concluding that the governing body violated the Canadian Charter of Rights and Freedoms, Canada’s bill of rights, according to the Alliance Defending Freedom, a conservative legal firm based in the United States.
The College Fix: Big win for religious freedom up north: The forces of secularism can’t punish law school graduates because their institution forbids premarital sex or sex outside of traditional marriage, according to the Alliance Defending Freedom.
ADF Media: A Nova Scotia trial court ruled Wednesday that the Nova Scotia Barristers’ Society does not have the authority to deny accreditation to Trinity Western University’s law school because of its biblical beliefs on appropriate sexual behavior. The court concluded that the NSBS violated the Canadian Charter of Rights and Freedoms and did not consider “the concerns for religious freedom and liberty of conscience.”
National Law Journal (Access via Google): A coalition of news media and public interest organizations is calling on the U.S. Supreme Court to break from tradition and allow broadcast coverage of the upcoming arguments in the landmark same-sex marriage cases.
CBCNews: The Nova Scotia Supreme Court has struck down a decision by the Nova Scotia Barristers’ Society to deny graduates of British Columbia’s Trinity Western University the right to practise law in the Maritime province.
Times Colonist: Nova Scotia’s law society doesn’t have the authority to deny accrediting graduates from a Christian university because of the school’s policy prohibiting sexual intimacy outside marriages between men and women, the province’s Supreme Court ruled Wednesday.
Pew Research: Often, the U.S. Supreme Court considers only one religion-related case each year. But 2015 could shape up to be a particularly active and influential year when it comes to religious liberties issues.
The New American: If you belong to the Boy Scouts of America, you’re not fit to be a judge in California, that state’s Supreme Court has decided.
Life News: President Barack Obama’s Attorney General nominee Loretta Lynch faced a hearing today in the Senate Judiciary Committee. During the hearing, she admitted that she supported partial-birth abortions.
Baltimore Sun: The legal fight over land playing out between the Episcopal Diocese of Maryland and a tiny Middle River church is one of the rare lawsuits filed against the denomination in the state. But it’s one of dozens of such cases across the nation over 30 years that have turned on Constitutional questions that the Supreme Court has attempted to answer more than once.
Religion Clause: As reported by the Los Angeles Times, on Wednesday, the California Supreme Court approved a recommendation of an ethics advisory committee to strengthen the prohibition in California Code of Judicial Ethics, Sec. 2.C. that prohibits judges from holding membership in any organization that discriminates on the basis of race, sex, gender, religion, national origin, ethnicity, or sexual orientation. Previous exceptions for membership in military organizations or nonprofit youth organizations (such as the Boy Scouts) were eliminated in the recently approved change.
National Law Journal (access via Google): The justices who don’t attend the State of the Union address have made their reasoning clear. Justice Samuel Alito Jr., for example, doesn’t want sit silently like a “potted plant.”
The Legal Intelligencer (Subscription Required): In the summer of 1989, U.S. senators debating the Americans with Disabilities Act excluded behavior they deemed immoral from the ADA’s protections, including “transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, or other sexual behavior disorders,” according to the text of the law.
National Law Review: Long-standing U.S. Supreme Court precedent provides that where a federal law results in “excessive entanglement” of the government with religion, it is unconstitutional under the freedom of religion clauses in the First Amendment.
Mirror of Justice: Nothing in the Constitution, even read loosely, requires states to recognize same-sex romantic or sexual partnerships as marriages. Here are two pieces on that point.
LA Times: When the California Supreme Court voted last week to prohibit state judges from belonging to nonprofit youth organizations that practice discrimination, Julia Kelety was not surprised.
The Indiana Law Blog: U.S. Supreme Court Justice Clarence Thomas on Tuesday sharply criticized a federal appeals court for issuing a lengthy opinion that was nonetheless unpublished, which he called a “disturbing aspect” of the case before the high court.
NBC News: The U.S. Supreme Court says seven protesters were taken into custody for disrupting the first few minutes of the opening session of court proceedings Wednesday. An eighth person who apparently attempted to record a video while the protest was happening was also detained.
Election Law Blog: The framing of these questions apparently differ from the way the questions were presented in all of the petitions, which raises the question of why were they rewritten (with an accompanying direct order—I’ve not seen that before—admonishing the parties to stick with discussing these questions presented).
National Law Journal: It was a homecoming of sorts for U.S. Supreme Court Justice Samuel Alito Jr. on Thursday as he reminisced about Philadelphia and his friendship with one of its famous sons, the late appeals court judge Edward Becker, “a man who made a big difference in my life.”
National Law Journal: Even U.S. Supreme Court justices get stuck in traffic. Justice Antonin Scalia was absent from the court briefly at the beginning of Tuesday’s court session, delayed because of a traffic accident that caused lengthy backups on several routes into Washington from Virginia, where the justice lives.
National Review: As I noted last week, in a recent San Francisco Daily Journal article (subscriber-only), judicial-ethics expert Arthur Hellman seconded my call that the Ninth Circuit investigate whether its process for assigning judges to cases has been abused for ideological purposes.
Associated Press: The Supreme Court seemed troubled Tuesday by the Obama administration’s aggressive defense of its strategy for targeting job discrimination in the workplace.
National Review: Today the Supreme Court resumes its weekly oral arguments after a long winter’s nap. The court held a conference last week to consider a long list of cert petitions, so we should be hearing about some of those too.
USA Today: The Supreme Court opened its December session a month ago by trying to determine what was going through the mind of a Pennsylvania man when he posted threats against his wife and others on Facebook.
Bloomberg View: Is New York state’s ban on “tiger selfies” the goofiest law of the year? It might be absurd for the state to pass a law banning the taking of photographs with jungle cats, but there’s nothing in the U.S. Constitution that bans absurd laws. The practical question — at least if you’re a New York stud who wants a tiger selfie for your Tinder photo — is whether the law is constitutional. If it is, you might have to travel to New Jersey (gasp) for your close encounter of the feline kind.
National Review: I’ve presented evidence that arch-liberal Ninth Circuit judge Stephen Reinhardt has benefited from unusual case assignments by the Ninth Circuit clerk’s office. I’m now pleased to highlight a massive statistical analysis of Ninth Circuit case assignments that uncovers statistically significant anomalies that uniquely favorReinhardt. According to the study’s author, the odds that random chance would have generated Reinhardt’s pattern of case assignments are “about 3350 to 1”—yes, that’s three thousand, three hundred fifty to one—against.
The Washington Times (AP): The Supreme Court won’t hear a challenge to part of Vermont’s campaign finance laws that impose contribution limits on political action committees.
ABC News (World News): The top court in Connecticut ruled today that a 17-year-old girl can be forced to undergo chemotherapy after she refused treatment for her cancer.
Greenbay Press Gazette (AP): Civil rights advocates asked the U.S. Supreme Court on Wednesday to reverse a decision upholding Wisconsin’s voter photo identification law, arguing the case raises questions of national importance about limits on a state’s ability to restrict voting.
National Review: In mid-December, I published a column in the San Francisco Daily Journal and theLos Angeles Daily Journal (sister legal newspapers) in which I called for the Ninth Circuit to investigate whether its process for assigning judges to cases has been abused for ideological purposes.
The Economist: A bill circulating in the House of Representatives, the charmingly named Sunshine in the Courtroom Act, aims to overturn a 70-year prohibition on cameras in federal courtrooms. It would allow media coverage of proceedings in such courts at the discretion of the presiding judge.
Fox News: The Connecticut Supreme Court will hear the case Thursday of a 17-year-old cancer patient and her mother, who are locked in a legal battle with the state government over the teen’s right to refuse chemotherapy.
National Law Journal: The U.S. Supreme Court returns for arguments on Jan. 12 in a term likely to be defined—as its terms were in 2013 and 2014—by a battle over President Barack Obama’s signature health insurance reform.
SCOTUS Blog: At its Conference on January 9, 2015, the Court will consider petitions seeking review of issues such as state bans on same-sex marriage, proof of intent in a constructive discharge case, personal jurisdiction to award a no-contact order, and the presumption of judicial vindictiveness under North Carolina v. Pearce.