Written by K. Hollyn Hollman, BJC General Counsel

So far this term, the U.S. Supreme Court has declined to review lower court decisions in two high-profile religious liberty disputes, one involving cross displays erected along Utah’s highways and another concerning a New York church’s long-term use of a public school building for its weekly Sunday worship services. In the former case, Justice Clarence Thomas issued a 19 page dissent — atypical at the petition stage — expressing his disagreement with the Court’s decision not to grant review. In the latter case, some observers were surprised by the denial because the case could have offered the Court a chance to clarify its own precedent concerning equal access principles.

While it’s hard to know what considerations motivate the Court to deny review of any specific case, these examples present an opportune time to discuss the process and significance of seeking Supreme Court review, which begins when one party files a petition for a writ of certiorari. The cases also illustrate how challenging religious liberty cases can be due to their fact-driven, context-specific nature. So often these disputes are resolved on narrow grounds, and the two cases denied this term are no exception.

Unlike state courts and lower federal courts, the U.S. Supreme Court is not generally obligated to hear appeals, meaning most litigants do not possess a right to U.S. Supreme Court review. In the Court’s October 2010 term, it granted certiorari in only 90 cases from an initial docket of more than 9,000 petitions. The Court’s rules provide, “[a] petition for a writ of certiorari will be granted only for compelling reasons.” Determining what circumstances meet that threshold — an historically high one — is at the Court’s discretion. Little is known about the justices’ internal decision-making process in voting to grant or deny review, other than that at least four of the nine justices must vote to accept a case. The reasons behind the justices’ decisions granting or denying review are thus the subject of much speculation and debate.

In practice, certain factors increase the likelihood that the Court may accept a case. Among other considerations, the Court may grant certiorari in cases of pressing national significance or where it is necessary to resolve conflicting decisions among lower courts. Still, the calculus is a complicated one, and none of these characteristics guarantee review. Importantly, a denial of certiorari is not an affirmative statement by the Court about the decision below. It does not mean the Court necessarily agrees with the lower court’s decision, and it does not preclude review of similar cases in the future. Instead, it may represent the justices’ judgment about the right timing for hearing a case or simply reflect administrative demands.

In American Atheists v. Duncan, for instance, the 12-foot roadside crosses honoring individual fallen state troopers were financed by a private, nonprofit group and were erected only after obtaining consent from each trooper’s family. Nonetheless, the 10th U.S. Circuit Court of Appeals invalidated the crosses, finding they conveyed to a passersby impermissible government endorsement of religion. Despite the crosses’ private origins, they were displayed under the auspices of the Utah Highway Patrol and many were erected on state property, lending the appearance of state support. This context distinguished the Utah crosses from veterans’ headstones in military cemeteries, which often bear religious symbols that reflect the late service members’ personal religious beliefs without violating the Constitution.

Likewise, the holding of the 2nd U.S. Circuit Court of Appeals in Bronx Household of Faith v. Board of Education of the City of New York rested on a narrow analysis of the specific school policy being challenged. The New York City School Board policy at issue in that case permits religious expression by groups meeting in public school buildings but prohibits churches from using those facilities for conducting regular worship services. The court’s decision denying a church’s request for permanent use of school facilities is not binding outside the 2nd Circuit, and the Supreme Court’s refusal to review the case did not signal formal approval of that outcome.

It is not uncommon for media reports to incorrectly report that the U.S. Supreme Court affirmed a ruling merely because the Court considered and decided not to review it. By contrast, the granting of certiorari is a major event signaling the potential for an important development in the law. The U.S. Supreme Court’s decisions that interpret the First Amendment and religious liberty statutes define the extent of our religious liberty. Until certain cases reach the Supreme Court, however, some applications of these provisions simply rely on the efforts of lower courts and other government officials to follow the law.