We think Americans in the 21st century should be as free to pray and have religious invocations … as people who were at the time as the framing of our Constitution. —Attorney Thomas G. Hungar
The United States Supreme Court won’t be slowing down in its next term, even after a series of historic decisions in its last round of cases.
The new term, which started Monday, will feature several cases on social issues ranging from abortion and public prayer to affirmative action and campaign spending. A few of these high-profile cases are highlighted below.
Jesse Choper, public law professor at Berkeley Law at the University of California Berkeley, said many of these cases are unpredictable.
“You just don’t know which way they’re going to go," he said. “But the majority of the cases (the court usually takes) are to reverse decisions."
Religious liberty appeal
One case not yet on the Supreme Court's docket, but that will almost certainly be heard this term, is the government’s request that the Supreme Court review a decision in the Hobby Lobby v. Sebelius case. In this case, the for-profit arts-and-crafts chain Hobby Lobby asked for an exemption from the Affordable Care Act's requirement that companies with more than 50 employees offer health care plans with contraceptive options, based on owner David Green's religious objections to contraception.
In its appeal to the Supreme Court, the U.S. said the federal law doesn’t ask the Greens to personally offer health coverage or satisfy other legal obligations of corporations. Instead, the U.S. said, Hobby Lobby as an employer is responsible for a “group health plan for the more than 13,000 full-time employees.” And that health plan is required by the Affordable Care Act to provide contraceptive coverage, the U.S. said.
According to attorney Kyle Duncan of the Becket Fund for Religious Liberty, which represents Hobby Lobby, the company must file an appeal by Oct. 21 to respond to the government’s appeal. After filing the response, the case will be presented to the Supreme Court for review.
“I would expect (the response to be reviewed) sometime near Thanksgiving,” Duncan said.
The result of this case could offer a precedent for how for-profit companies obtain religious exemptions and how religious owners can consult their beliefs when making decisions that impact personnel.
The small town of Greece, N.Y., will ask the court to allow it to continue opening meetings with a prayer, even though an appeals court ruled the invocations were a violation of the First Amendment because they were always Christian prayers. In this case, Town of Greece v. Galloway, the court's ruling could uphold a 1983 decision, Marsh v. Chambers, that set a precedent for allowing an invocation in legislative meetings, or it could outlaw prayer at town meetings.
If the decision is upheld, Greece will be allowed to continue to have prayer before its meeting, said Attorney Thomas G. Hungar, who represents the town of Greece. If the court were to rule against the New York town, Hungar said it would create confusion and ultimately reshape the way many government meetings begin.
“We think Americans in the 21st century should be as free to pray and have religious invocations as people who were at the time as the framing of our Constitution,” Hungar said.
The Supreme Court could reach an alternate decision, Hungar said. This option would still allow Greece to have invocations at their meetings, but with restrictions. For example, a prayer-giver could refer to God, but otherwise couldn’t refer to anything specific that could offend people of different religions, Hungar said. Another alternative, Hungar said, would be for the court to mandate an invocation of “a civic religion," which would allow the invocation to occur but not mention God or any specific type of God.
The court could also rule that Greece has a rotating representation of prayer, similar to towns in Florida, Georgia and Alabama. In a 2008 decision, the U.S. Court of Appeals ruled in favor of the method, which has different clergy members of a variety of religions speak or give prayer before meetings on a rotating basis.
Requests for comment to Ayesha Khan, who represents Susan Galloway, were not returned. Galloway's main argument, though, is that these prayers violate the establishment clause of the Constitution and promote Christianity. Invocations are not supposed to promote any particular religion, according to Galloway's case.
Choper said the decision is likely to "cut in the direction" of Greece, but that it's not easy to predict a result.
Two abortion disputes
In the Supreme Court’s first abortion case since 2007, the court will review an Oklahoma law that would prohibit the use of select abortion-inducing drugs, including RU-486, in Cline v. Oklahoma Coalition for Reproductive Justice.
Plaintiff Terry Cline is arguing the Oklahoma Supreme Court erred in finding a state law — that required abortion-inducing drugs be administered according to a protocol described on the drugs’ Food and Drug Administration-approved labels — unconstitutional.
Patrick Wyrick, who represents Cline in the case, said some abortion clinics are ignoring FDA procedures, including the FDA requirement that the abortion medication to be taken in the doctor’s care rather than be self-administered.
Requests for comment from the defendant, the Oklahoma Coalition for Reproductive Justice, were not returned. The defense's case is that women should have a range of choices of contraceptives, including surgical abortions, which the defense argues are safer than drug-induced abortions.
Choper said the decision is important because it would define the difference between a contraceptive medicine and an abortion.
In McCullen v. Coakley, Massachusetts is defending a law that made it a crime for protestors to “enter or remain on a public way or sidewalk” within 35 feet of an entrance, exit or driveway of a “reproductive health care facility,” or abortion clinic. The decision will determine how close protesters can be to an abortion clinic.
Choper said he's heard of similar cases in the past, but isn't sure which way this decision might fall.
Affirmative Action is also on the table for the Supreme Court this term. Schuette v. Coalition to Defend Affirmative Action reviews a 2006 Michigan ballot initiative that barred preferential treatment for race or sex in public education, government work and public employment.
The CDAA’s case specifically looks at whether a state violates the Equal Protection Clause by amending its constitution to end race- and sex-based discrimination or preferential treatment in regards to higher education and not government or public work, according to attorney George Washington, who represents the Coalition to Defend Affirmative Action.
For Attorney General Bill Schuette, this case is about defending the Michigan Constitution, he said, adding that Michigan, at the moment, provides equal treatment for all citizens and that shouldn't change. He believes the court will side with him.
If the court rules in Schuette's favor, affirmative action will be prohibited in Michigan. But if the ruling goes in favor of the CDAA, the Michigan minority population (about 21 percent, according to 2010 U.S. census data) would have preferential treatment (or what the CDAA calls "equal treatment") when it comes to higher education.
Choper believes the court will side with the CDAA.
“If they took this case, then the chances they are going to hold that (Michigan's law) is unconstitutional are fairly strong," Choper said.
McCutcheon v. Federal Election Commission, which was argued today, is the first major case on the calendar. It challenges the limits on what an individual may give to candidates, political parties or political action committees within a two-year federal election cycle.
Currently, the limit is at $48,600 to individual candidates and $123,600 in total contributions. This case is about assessing the totals and challenging limits, which were upheld and approved in a 1976 decision.
Choper said if the Supreme Court rules to change the contribution totals, then they'd have to "overturn a bunch of precedents" that have upheld contribution totals.
He also said this would be the most controversial of all the cases on the docket and that it could seriously impact voters by restricting how much they can contribute to a specific candidate.