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[dc]T[/dc]oday is the first Monday in October, meaning that the United States Supreme Court comes back from recess and begins to hear new cases. This term, the Supreme Court will be revisiting the issue of whether states must fund religious schools, whether clergy members can say prayers during executions of inmates, and whether a state can ban abortion before viability. The following is a brief summary and analysis of the cases.

Carson v. Makin (Argument set for December 8, 2021) – State funding of Religious Schools

In Carson v. Makin, the Court will decide whether Maine’s exclusion of funding for religious schools is constitutional. In Maine, families that live in areas without a public school can receive public funding to send their children to a private or public school of their choice so long as they do not choose a religious school. Similar rules exist in New Hampshire and Vermont.   The Supreme Court recently ruled in other cases on state funding of religious schools in Trinity Lutheran Church of Columbia, Inc. v. Comer (1997) (holding that a state rule prohibiting state playground resurfacing money from going to a religious school violated the Free Exercise Clause) and Espinoza v. Montana Dep’t of Revenue (2020) (holding that the state’s “no-aid” provision that prohibited tuition assistance to parents who send their children to religious schools violated the Free Exercise Clause).

In Espinoza, the 5-4 decision said, “a State need not subsidize private education. But once a State decides to do so, it cannot disqualify some private schools solely because they are religious.” Based on Trinity Lutheran and Espinoza, the Court will likely find that Maine’s exclusion of funding for religious schools will likewise violate the Free Exercise Clause.

In this author’s view, these are significant potential intrusions on the separation of church and state, and may provide an avenue for government overreach and regulation of religious schools that do not want to abide by the non-discrimination and behavioral standards that are met by public and non-religious private schools. A classic case of “wanting to have the cake and eat it too.”  (By the way, having a cake means holding and preserving it as a cake and eating the cake means to ingest the cake thus forever changing it into something different.) It remains to be seen why any religious institution with an eye toward the long-term ramifications would want to eat their cake other than for the most temporal of reasons.

We are not that far removed from the string of “ministerial exception” cases in which religious schools fended off intrusions on employment decisions because religious and secular employers have fundamental differences. (See Our Lady of Guadalupe v. Morrisey-Berru (2020), Hossanna-Tabor Evangelical Lutheran Church and School v. EEOC (2012), and St. James School v. Biel (2020)).

Ramirez v. Collier (Argument set for November 1, 2021) – Death Penalty Clergy Presence

The topic of the presence of clergy at executions of death row inmates has been bouncing around at the Supreme Court for the last three years.

This year, the Supreme Court will hear Ramirez v. Collier, a case involving a Texas inmate who is allowed to have a pastor present during the execution, but the pastor may not lay his hands on the inmate during the execution or audibly pray.

The history on this is convoluted. In 2019, the Court ruled in Dunn v. Ray, that a Muslim death row inmate in Alabama could not have a imam present during his execution because Alabama only allowed Christian clergy to be present. (In fact Alabama mandated that Christian clergy be present). Then the Court soon ruled in Murphy v. Collier that the state of Texas’ argument that a Buddhist minister posed a security risk was unfounded because Texas allowed Christian and Muslim clergy to be present.

Since Texas and Alabama both had a problem with non-Christian clergy being allowed into the execution chamber, both decided that they would ban ALL clergy members from the execution chamber.

So in February 2021, the Supreme Court heard Dunn v. Smith. In this case, Smith sued the state of Alabama for the right to have his Christian clergy member present at the moment of death. The Court of Appeals ruled in Smith’s favor and the Supreme Court refused to overturn the lower court’s ruling to exclude the pastor despite the request from Alabama to ban the pastor.

So now we have the Texas case involving whether a Christian inmate can be touched or spoken over by a Christian clergy member during the execution. Ramirez claims that the enforced silence violates his Free Exercise rights. The state argues that the pastor has access to Ramirez and that they are not compelling him to do anything that violates his conscience (although Ramirez is presumably concerned about the execution itself). The state also claims that Ramirez did not previously request the audible prayer and is simply raising it as a litigation tactic to delay the execution.

It is hard to say which way the Supreme Court will rule on whether the pastor may touch Ramirez or pray, but the inconsistent approach that Texas and Alabama have had toward inmates of different faiths should not escape unnoticed. Texas has the largest number of executions in the United States, with 573 inmates executed since 1982 including 3 in 2021. In the same period, Alabama has had around 68.

Dobbs v. Jackson Women’s Health Org. (Argument set for December 1, 2021)-  Abortion

Mississippi passed a law banning abortion after 15 weeks, which is still a period considered “pre-viability” under Roe v. Wade (1973). In Roe and Planned Parenthood v. Casey (1992), the Court stated that the Constitution protected the right of a woman to have an abortion before the fetus could survive outside the womb. Roe introduced the trimester system, with no restrictions in the first, some in the second, and states had discretion to impose restrictions in the third. Under Casey, the Court overturned the trimester framework and instead said restrictions were unconstitutional when they were enacted for “the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.”

In 2016, the Court ruled 5-3 in Whole Women’s Health v. Hellerstedt that Texas restrictions on the delivery of abortion services created an undue burden for women seeking an abortion. The Texas restrictions required that abortion providers have admitting privileges at a hospital within 30 miles and that abortion providers needed to meet the same standards as an ambulatory surgery center and that facilities needed to meet the standards of a hospital room. The Court found that the restrictions were intended not to provide increased safety but to limit access to abortion.

Of course, earlier this year, Texas passed a law that gave private citizens the right to sue anybody involved with any abortion occurring at or after six weeks of gestation. If the person suing wins, the defendant would have to pay the plaintiff’s attorney fees. But if the defendant wins, the defendant would still bear the burden of their own attorney fees. The law said that the state would not be involved in enforcing the law, essentially opening the avenue for litigation only between citizens on the matter. The Supreme Court refused to block the bill because it was unclear who the injunction would prevent from acting since anybody could bring such a lawsuit. In this reviewer’s opinion, the Texas approach aimed to blow up the legal system, and regardless of aims, set a dangerous precedent for other states to use the threat of private rights of action (private lawsuits) to block people from doing otherwise “constitutional” activities. For instance, a state could pass a law allowing people to sue gunowners.

Dobbs will be a fascinating case because if the Supreme Court rules for Mississippi, it will allow states to limit abortion access. There are human rights angles all around, and while most have an opinion about the right to life of an unborn child, most people grow silent when discussing the law enforcement aspects.







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