Hollman Report

Supreme Court declines to hear church-state cases in 2007-2008 term

By K. Hollyn Hollman

October 2007

The beginning of October marks a new Supreme Court term and the potential for a major development in church-state relations. Early in the term, the Court continues the process of reviewing petitions for certiorari, which determines the cases that it will hear. This term opened with no church-state cases on the docket, but with several petitions pending, some of which were denied during the first week of the new term.

It seems likely this term will be noteworthy for cases addressing such major issues as criminal sentencing guidelines, death by lethal injection, and the rights of detainees at Guantanamo Bay. Whether the Court adds any religion cases remains to be seen. In the meantime, it is worth noting the cases the Court denied hearing during its first week in session. The fact that the Court did not review them does not mean it agrees with the decisions left in place. The cases, however, provide a sketch of the kinds of cases that are bubbling up through the lower courts and the tough issues that may eventually be resolved by the High Court.

First, the Court let stand Vision Church, United Methodist v. Village of Long Grove, a case out of the 7th U.S. Circuit Court of Appeals, that was one of special interest to the BJC because of our leadership role in advocating for the Religious Land Use and Institutionalized Persons Act of 2000. In this case, we joined many other religious organizations seeking review by the Supreme Court because the decision below applies a narrow, watered down interpretation of RLUIPA’s statutory protections in this land use case. The appellate court in Vision Church set the threshold for finding a “substantial burden” on religion so high that the protections of RLUIPA are effectively rendered meaningless. The case also highlights the differences among jurisdictions over the application of RLUIPA and confusion in lower courts over the meaning of statutory terms in the context of RLUIPA and the Free Exercise Clause. In 2005, the Supreme Court heard a case dealing with the prisoner provisions of RLUIPA, but it has not yet reviewed any case applying the statute’s land use provisions.

Second, the Court again declined to hear a case that rejected religious freedom arguments by Catholic Charities for an exemption to a law that requires employers providing prescription drug coverage to employees to include prescription contraceptives for women. In Catholic Charities v. Dinallo, New York’s highest state court upheld the application of the statute to the Catholic and Baptist religious organizations that challenged it. The statute at issue provides an exemption for a narrow category of religious employers that did not cover those challenging the statute. The Court had earlier declined hearing a similar case from California.

Third, the Court let stand a case disallowing the use of a public library facilities for church services. Faith Center v. Glover, et al., is a case from the 9th U.S. Circuit Court of Appeals, in which a church was denied access to meeting space based upon a county policy that prohibited use of public libraries “for religious purposes.” The church argued that its right to religious expression was violated by the policy. The appeals court overturned a victory by the church at the district court level.

Much has been written about the overall declining Supreme Court docket. Therefore, it would be expected that the number of church-state cases heard would also decline. The New York Times reported that last term, the Court decided fewer cases than the year before and that the number of cases in 2005 was “the lowest since 1953 and fewer than half the number the court was deciding as recently as the mid-1980s.” While there is no consensus on the reasons for this phenomenon, it is clear that many of the important church-state cases are decided in the lower courts. With that in mind, the BJC will continue to pursue opportunities to be a strong voice for religious liberty in the courts, reviewing and participating in a greater number of cases in the lower courts through coordinated amicus (friend of the court) efforts and keeping you informed.