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Catholic Sentinel | Portland, OR Sunday, December 4, 2016

University of Portland MAPM 2016

Home : News : Nation and World
What's on the Supreme Court docket, and what might be there later
Catholic News Service photo
The front of the U.S. Supreme Court building in Washington.
Catholic News Service photo
The front of the U.S. Supreme Court building in Washington.
Catholic News Service


WASHINGTON — The Supreme Court's docket for the term beginning Oct. 7 is notable — from the perspective of the Catholic Church — for a handful of cases accepted or in the pipeline that would refine previous rulings on free speech, public prayer and the Affordable Care Act.

The docket so far lacks cases that would appear to be of wide-reaching significance, like last year's rulings on same-sex marriage, the Voting Rights Act and affirmative action at colleges. But there are several challenges bubbling up from lower courts which the court could add to the calendar, over aspects of the national health care law and its requirement that most employers cover contraceptives free of charge in their health plan for workers.

On Nov. 6, the court will consider whether it's appropriate for the town council of Greece, N.Y., to open its sessions with a prayer. The case may test the reach of a previous ruling that permitted prayers in legislatures as "a tolerable acknowledgment of beliefs widely held among the people of this country." The case is Greece v. Galloway.

The 2nd U.S. Circuit Court of Appeals ruled that the practice in Greece violates the Establishment Clause in the First Amendment of the Constitution. Although the town allows the prayer to be offered in any faith tradition, the court found that because the vast majority of the prayers were specifically Christian, with sectarian references to Jesus and "your son," and there was little effort to broaden the type of prayers offered, the practice is unconstitutional.

Among the issues likely to be raised as distinguishing the town council from state legislatures that were the subject of previous case law, is that at the local government level, applicants for permits or zoning may be required to appear at the meetings, where they might be subjected to unwelcome prayers. Participating in sessions of legislatures, on the other hand, is voluntary.

The protest buffer zone around an abortion clinic in Massachusetts is the focal point of another case involving the First Amendment as well as the 14th Amendment's right to equal protection under the law. The case, McCullen v. Coakley, has been accepted by the court, but as of Oct. 4 had not yet been put on the calendar for oral arguments. It could be heard as early as January.

The U.S. Conference of Catholic Bishops joined an "amicus," or friend-of-the-court brief, with nearly a dozen religious organizations calling for the Supreme Court to overturn a 1st U.S. Circuit Court of Appeals ruling that upheld a Massachusetts law on activities around abortion clinics. The law prohibits protesters from being on public sidewalks or rights-of-way within 35 feet of the entrance, exit or driveway of a "reproductive health care facility," though it applies only at abortion clinics and exempts many categories of people, observed the American Bar Association's online preview of the case.

It summarized: "In effect, the law restricts the speech of only those who wish to use public areas near abortion clinics to speak about abortion from a different point of view."

The brief the USCCB joined, led by the National Hispanic Christian Leadership Conference, argues that the high court's 2000 ruling in Hill v. Colorado, whose precedent was cited by the 1st Circuit in upholding the Massachusetts law, was wrongly decided.

"Hill's analysis charts a course for government manipulation of the public forum to suppress unwanted expression," said the brief's summary. "It exalts form over substance."

On Dec. 10, the court will take up Mayorkas v. Cuellar, which challenges how the Board of Immigration Appeals deals with the problem of a decades-long backlog for certain types of immigration applications.

One example cited in the petition to the court to take the case was of a man whose U.S. citizen sister applied for a visa on his behalf, including his then-minor daughter as a derivative beneficiary. By the time the petition for the man was granted a decade later, his daughter was over 21 and ruled ineligible to receive a visa derived through her aunt. She would have to begin the process again, as a beneficiary of her father's status, beginning another multi-year wait.

In its ruling, the 9th U.S. Circuit Court of Appeals said the practice of U.S. Citizenship and Immigration Services violates a 2002 law, the Child Status Protection Act.

The court also will be asked to consider cases from lower courts over a requirement of the Patient Protection and Affordable Care Act, also known as Obamacare, that most employers provide free coverage of contraceptives in employee health plans.

Under final rules from the Department of Health and Human Services implementing the requirement there is an exemption for some religious bodies that fit certain criterion in the Internal Revenue Code. HHS also has an accommodation for religious ministries that do not fit the exemption but morally oppose the mandate: They can use a third-party to provide the coverage.

But dozens of Catholic dioceses, colleges and other religious institutions have sued over the mandate, saying the exemption is too narrow.

A second category of lawsuits against the mandate have been filed by the owners of several for-profit businesses who object to it on moral grounds; secular companies are not exempt.

Among them is arts and crafts chain Hobby Lobby. The Christian owners of the Oklahoma-based chain specifically object on moral grounds to that part of the mandate requiring they provide emergency contraceptive coverage -- such as the morning-after pill or Plan B — saying that violates their religious freedom.

The family has no moral objection to be covering "preventive contraceptives" and will continue to cover those for employees.

There's been a mixed bag of lower court rulings on the HHS mandate lawsuits. Most recently, a three-judge panel of the 6th U.S. Circuit Court of Appeals ruled Sept. 17 that a Michigan business must comply with the mandate even though the Catholic owner is morally opposed to such coverage.

On Sept. 19, the Justice Department asked the Supreme Court to review a ruling of the 10th U.S. Circuit Court of Appeals that said Hobby Lobby could proceed with its request for an injunction protecting it from having to implement the mandate. In a June ruling, the Circuit Court remanded Hobby Lobby's request for an injunction back to a federal District Court.

In July, the 3rd U.S. Circuit Court of appeals ruled that a Mennonite-owned company had to comply with the HHS mandate, because as a for-profit secular corporation it "cannot engage in religious exercise" and therefore is not protected by either the Free Exercise Clause of the First Amendment or the Religious Freedom Restoration Act.



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