The October 2015 term of the U.S. Supreme Court is underway. As usual, there are several religious liberty questions the Court may decide to resolve. Here is a brief overview of some of the cases I am watching:
School Vaccination Policy – In its first set of orders in the new term, the Supreme Court denied the petition in Phillips v. New York, a religious liberty challenge to New York regulations, which during a disease outbreak permit the exclusion from public school activities of children who are unvaccinated for religious reasons. (The plaintiff’s child in this case was required to stay home from school during a chicken pox outbreak.) The 2nd Circuit Court of Appeals upheld the regulations against a constitutional challenge in January. The Supreme Court’s denial of the petition leaves that ruling in place.
Contraception Coverage Mandate Accommodation for Religious Nonprofits – That’s right, the Court could (and likely will) decide to take up another religious liberty question surrounding the controversial provision in the Affordable Care Act requiring employer-provided health care insurance to cover various forms of contraception.
In Hobby Lobby, the Court last year ruled the mandate violates the religious liberty rights of closely held for-profit corporations. The question that is currently pending involves nonprofit religious organizations, which are eligible for an accommodation from the mandate but claim that the accommodation process established by the Obama Administration substantially burdens their religious freedom in violation of the Religious Freedom Restoration Act (RFRA).
Several Circuit Courts of Appeal have rejected that argument, but the 8th Circuit recently agreed. Because of this disagreement among circuits, the Supreme Court is likely to take up one or more of the cases to resolve the dispute. Most attention has gone to Little Sisters of the Poor v. Burwell from the 10th Circuit (see prior coverage here). Law professor Marty Lederman argues the Court should choose Roman Catholic Archbishop of Washington v. Burwell, a petition from the D.C. Circuit (see prior coverage here).
The Scope of RFRA – Another pending petition involving RFRA is the case of Listecki v. Official Committee of Unsecured Creditors. RFRA prohibits the government from creating a substantial burden on a person’s free exercise of religion unless it is necessary to further a compelling government interest. An issue in Listecki is whether RFRA applies in lawsuits between private parties.
In this case, a creditors’ committee is seeking to void a transfer of millions of dollars by an archdiocese in bankruptcy, which is claiming RFRA protects it from such applications of the bankruptcy code. The 7th Circuit ruled that RFRA does not apply because the committee is not a government agency and the law does not extend to suits in which the government is not a party. Arguably, this decision creates a split among circuits that the Supreme Court could step in to resolve.
Other petitions posing religious liberty questions may also be in the pipeline. These are the two I am watching most closely right now. Stay tuned.