Catholic News Service
WASHINGTON — Not much more than a year after the Supreme Court ruled that bans on same-sex marriage were unconstitutional, the court could again this term weigh in on state laws related to such marriages.
When the court opens its 2014 term Oct. 6, the docket will include cases dealing with taxation, apportionment of river water, employment law and a handful of lower court rulings dealing with First Amendment rights. However, at a Georgetown University Law Center briefing about the term Sept. 23, analysts spent the biggest chunk of time discussing cases the court might take, as opposed to those already on the calendar.
The docket so far is dominated by dryer matters or issues that will likely be settled in ways that won’t affect much more than the individuals involved in those specific situations.
But the cases that will catch the attention of the general public probably are those that were still pending: the half-dozen or so appeals of lower court rulings on state same-sex marriage laws. The justices were to consider several of those at their Sept. 29 conference, along with hundreds of other appeals.
The court also this term probably will be asked to review rulings on health insurance subsidies under the Affordable Care Act; some state laws intended to restrict access to abortion-inducing drugs and others legislating medical standards for abortion clinics.
Religious rights case
Before those might come along, however, the first religious rights case is scheduled for Oct. 7.
The justices will hear oral arguments that day about whether Arkansas inmate Gregory Holt, also known as Abdul Maalik, should be allowed to grow a short beard, in accord with his Muslim beliefs. The state prison policy bans all beards as security risk, although 40 other state prison systems and the federal prisons permit short beards under some circumstances.
Holt, who requested a half-inch beard, argues that the policy conflicts with the Religious Land Use and Institutionalized Persons Act, a 2000 federal law that extends to prisoners some of the protections of the Religious Freedom Restoration Act. RFRA, as the latter bill is known, was the key to the court’s ruling in June that the federal government may not require closely held for-profit companies to provide contraceptives in employee health insurance if the owners say it would violate their religious beliefs.
In that ruling, the court accepted the argument of the owners of the Hobby Lobby crafts stores that the federal government failed to meet its goal of providing contraceptive coverage in a way that was the least restrictive of the owners’ religious rights as delineated by RFRA. In the Arkansas case, Holt makes a similar argument — that the prison system seeks to control inmates’ behavior without attempting to ensure policies allow for religious practices.
Among the religious and civil rights organizations that filed “amicus” or friend-of-the-court briefs encouraging the justices to find for Holt, one joint brief is by the International Mission Board of the Southern Baptist Convention, the U.S. Conference of Catholic Bishops, and Muslim, Jewish, Lutheran, Presbyterian, Seventh-Day Adventist and United Church of Christ organizations. It discusses the benefits of religious practice among inmates.
Prisoners who are involved in religious activities not only are more stable emotionally, they are healthier and tend to have stronger connections to the outside world, were among the arguments that brief raised.
Also on the court’s docket, though not on the calendars for October through December, is a free speech case brought by the Good News Community Church of Gilbert, Arizona. The church posts signs around town inviting people to Sunday services. Under Gilbert’s sign code, the church’s signs must be removed within hours, while other types of signs, including political ads, are allowed to remain for months.
The church argues that the sign code is content-based, in violation of the First Amendment. The 9th U.S. Circuit Court of Appeals in 2013 held that the code is not content-based, but “tailored to serve significant governmental interests.”
Among the arguments raised on the church’s side is that the prohibition on content-based discrimination does not require evidence that the discrimination is intentional or targeted at a specific type of speech.
Same-sex marriage bans
Looming large over the court’s term will be how the justices dispose of the many lower court rulings that have overturned same-sex marriage bans or laws prohibiting states from recognizing same-sex marriages performed in other states.
In June 2013, the court overturned the Defense of Marriage Act, a federal law defining marriage as between one man and one woman, and overturned California’s Proposition 8, a voter-approved initiative barring same-sex marriage.
Since then seven federal court rulings rejecting several states’ laws have made it to the high court.
At the Georgetown briefing, professor Irv Gornstein, executive director of the Georgetown Law Supreme Court Institute, predicted the court would accept at least two of the pending appeals. Three are from Virginia and one each from Indiana, Oklahoma, Utah and Wisconsin.
He said that would enable the justices to address two separate streams of legal challenges, states must recognize same-sex marriages from other jurisdictions even if they are not legal in their own state, and laws prohibiting such marriages. Gornstein said the justices might have hoped it would take longer after the 2013 rulings before the next round of same-sex marriage cases reached them, but legal challenges have proceeded so fast they can’t wait.
Although a general rule of thumb is that the court rarely accepts challenges of significance across jurisdictions unless there are disagreements in how federal circuit courts rule, Gornstein and fellow panelists said they doubt that will apply in this situation.
“Given how much is at stake,” Gornstein said, “so many couples, so many states,” it’s not realistic of the court to delay.
He said accepting two cases also will reflect the importance of the issue and help avoid continuing confusion over what is constitutional.