Civil and Human Rights

Gay Marriage And The Blockbuster Issues SCOTUS Is About To Take On



When the Supreme Court met privately on Monday, one item on their plate was gay marriage: The justices discussed whether to hear an appeal from a state which had a same-sex marriage ban ruled unconstitutional.


Lower courts have ruled to legalize gay marriage in states including Utah, Virginia, and Wisconsin. The justices are widely expected to take one of the cases in this term. Marriage equality advocates have enjoyed many victories since the 2013 ruling requiring federal recognition of legal gay marriages, and Supreme Court lawyers expect that streak to continue.


“It’s going to be hard to count to five [Supreme Court] votes for upholding these laws” against same-sex marriage, Paul Clement, a renowned lawyer for conservative causes who lost the U.S. v. Windsor gay rights case, said on a Heritage Foundation panel last week.


It is one of several important issues that may come before the Court soon.


Here are several others.


Abortion? The explosive issue of abortion restrictions hasn’t come before the Supreme Court since 2007, when the new robust conservative majority upheld a federal ban on partial-birth abortion. But now that red states have passed a slew of anti-abortion laws in recent years, several of them face lawsuits that are making their way through the courts. Some high-profile challenges go after laws in Texas and Mississippi which significantly raise the standards required for abortion clinics to stay open, something critics call a back-door attempt to shut them down.


In a potentially ominous sign for abortion-rights advocates, the Supreme Court declined by a 5-4 margin an emergency appeal to temporarily halt the Texas law as it’s being heard by lower courts. It’s unclear if either side will attempt to force the issue before the justices — both tend to pick their abortion battles carefully with the Supreme Court. But the stakes are high, as the fate of up to dozens of abortion clinics hang in the balance, so legal advocates are bracing for it.


“There are hugely important cases we’d expect to be — or could imagine being — on the docket before the end of the term,” said Doug Kendall, the president of the progressive law group Constitutional Accountability Center. “Marriage equality, abortion restrictions … would be a hugely important case for the court.”


Pregnancy discrimination. The justices have already agreed to hear a case about a woman named Peggy Young, who became pregnant in 2006 while working part-time as a UPS delivery driver. She asked her employer for an accommodation so that she wouldn’t have to lift more than 20 pounds on the job. UPS denied it, saying the pregnancy didn’t qualify as a disability and that company policy was to treat pregnant and non-pregnant workers the same. Young was forced to take an unpaid leave of absence, and sued under the Pregnancy Discrimination Act. Her lawsuit was dismissed by a trial court and an appeals court, so she asked the Supreme Court to hear it.


In a remarkable feat, Young’s cause has united feminists with anti-abortion advocates. Women’s rights advocates criticize UPS’s actions as blatant sex discrimination, while pro-life activists worry that a lack of workplace accommodations for pregnant women could make them likelier to seek an abortion. But that doesn’t provide any hints as to how the justices will rule.


Religious freedom. The justices ruled in June that Christian business owners have a right to opt out of a health care requirement if it goes against their religious beliefs. But does a Muslim prisoner who wants to grow a ½ inch beard, as commanded by his faith, have the same right? That question will come before the Court in Holt v. Hobbs — Arkansas inmate Abdul Muhammad is being represented by the Becket Fund, which also represented Hobby Lobby in its victory against the contraceptive mandate.


In another religious liberty case this term, the Supreme Court will hear Reed v. Town of Gilbert, brought by a small church in Gilbert, Arizona. It’s about whether a town law discriminates against religion by placing more stringent limits on roadside religious signs than on political signs. That church, too, is being represented by the Becket Fund.


“Religious freedom is … near and dear to the Chief [Justice John Roberts’] heart. It’s an area where the Court was quite quiet about it through most of his tenure but has really started to step into that space,” Kendall said. “By the end of the term we’ll have a much better sense of how strongly Chief Justice Roberts and his colleagues want to push the law in that area.”


A free speech right to threaten on the Internet. The framers of the Constitution couldn’t possibly have envisioned Facebook, and so it’ll be up to nine justices to determine whether the First Amendment protects a person’s right to make threatening statements online. It was brought by Anthony Elonis, a Pennsylvania man imprisoned for writing dark posts on Facebook which were construed as a threat to kill his wife and a classroom full of elementary school children after she left him.


The Supreme Court seldom gives an inch when it comes to the First Amendment, but one of the longstanding legal grey areas with the right to free speech involves threatening statements. The justices will consider whether the rights of Elonis — who claims his posts were not threats but rather a form of “[a]rt” — have been violated.


Racially-charged legislative redistricting. The justices will decide whether Alabama’s legislative redistricting scheme — in which minority voters were heavily concentrated into few districts — amounted to unconstitutional “racial gerrymandering” by reducing the voting power of blacks. The legal challenges to the post-2010 map were brought by the Alabama Legislative Black Caucus and the Alabama Democratic Conference.


The issue has national resonance as Democrats in many states are frustrated with the GOP’s adept redistricting maps after their huge victories in the 2010 election, which Republican leaders say have protected their House majority.


Obamacare subsidies apocalypse. Conservative legal opponents of Obamacare have asked the Supreme Court to settle a dispute about whether the statute permits subsidies to be provided on the federal exchange, which serves residents of 36 states. It’s unclear the justices will take the case this term, especially while one of the cases, Halbig v. Burwell, is still pending before the full D.C. Circuit Court of Appeals. If the justices take it on, it would be the most consequential health care case to come before the Supreme Court since the landmark constitutional challenge to the Obamacare individual mandate in 2012.


“There’s real potential that [the justices are] going to add some blockbusters,” Clement said.

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