The U.S. Supreme Court’s regular term ended Friday, June 30, 2017, and the nine lifetime Justices began their summer recesses.
A vacant seat and a perceived 4-4 ideological split clouded expectations in October when the court term began. Six months into the session, Justice Gorsuch joined the bench in a televised swearing-in ceremony conducted by swing-vote Justice Kennedy at the White House Rose Garden. Back at the U.S. Capitol, Democrats engaged in less ceremonial swearing, still ireful that the Republican U.S. Senators had mimicked their 2013 playbook to utilize the “nuclear option” and fill the “stolen seat.”
By the end of the term, the number of released opinions totaled 69. The general public, and most attorneys, are content to digest summaries. Still, to foster a better appreciation of the smallest, least funded, and most intellectual branch of the federal government, we should all read at least one opinion per term. But which one?
Here are my three runners-up:
1. Matal v. Tam [Free Speech]. The Slants, a rock band, took offense that a federal agency found its offensive name offensive and sought to overturn the federal law prohibiting trademark protection for a disparaging name as violative of the First Amendment. Ruling 8-0, the Court lectured Congress, numerous law professors, and a few public colleges on the bedrock right called Free Speech. Go Redskins!
2. Whole Woman’s Health v. Hellerstedt [Abortion]. This 5-3 abortion rights ruling fell along expected lines. The holding – finding legislatively imposed abortion restrictions unconstitutional – adds another landmark abortion ruling to the list. Although the subject enthralls activists, personally I find reading another divided Texas abortion opinion quite tedious.
3. Bristol-Myers Squibb v. Superior Court of California [Forum Shopping]. The plaintiffs’ bar ran into an 8-1 blockade when the Supremes ruled California lacked personal jurisdiction over the putative claims of hundreds of plaintiffs from 33 states. The Court astutely noted that the plaintiffs had not been prescribed the drug in California, did not buy the drug in California, and were not injured in California, and the defendant drug company was not based in California.
The One Opinion to Read
The one Supreme Court opinion everyone should read in 2017 is Trinity Lutheran Church of Columbia, Inc. v. Comer, a 53-page, 7-2 stunner. This opinion dissects the Religion Clauses of the First Amendment, reaffirms a strict scrutiny test for government encroachment, provides insight into the One Protestant’s views, and sets the stage for a judicial determination in the simmering national debate over whether LGBTQ rights trump the Free Exercise Clause.
Factually, the case is simple. Missouri disqualified a church-owned school from a playground grant program because a state constitutional provision prohibited the use of public money to aid any church or religion.
The ruling is also simple. To quote Justice Roberts’ concise explanation: “The State in this case expressly requires Trinity Lutheran to renounce its religious character in order to participate in an otherwise generally available public benefit program, for which it is fully qualified. Our cases make clear that such a condition imposes a penalty on the free exercise of religion that must be subjected to the ‘most rigorous’ scrutiny … [T]he exclusion of Trinity Lutheran from a public benefit for which it is otherwise qualified, solely because it is a church, is odious to our Constitution … and cannot stand.”
If you read only the 15 pages comprising the majority opinion, you will likely find the Court’s opinion educational but unremarkable. Justice Roberts’ cadence resonates with appealing logic and adherence to precedent. The separate concurring opinions of Justices Thomas and Gorsuch provide the first clue that more is at stake. Gorsuch eloquently points out the troubling distinction between religious status and religious use. His analogy of acts and omissions and the rising sea tide is one for the books (specifically 582 U.S. __ 2017).
The second clue, the dissent authored by Justice Sotomayor, fills 27 pages – more than half the total opinion. Sotomayor describes the majority’s holding as “a radical mistake” with a “lopsided outcome” that “discounts centuries of history” and “jeopardizes the government’s ability to remain secular,” all while “dismantl[ing] a core protection for religious freedom,” and ignoring the “separation of church and state.” Despite a deep liberal bench, Sotomayor could only procure one concurring vote – Justice Ginsburg.
One might ponder what all the kerfuffle is about. The answer may lie in a separate decree issued that same Monday, June 26, 2017, in which the Court granted the petition for writ of certiorari in the Masterpiece Cakeshop case. Jack Phillips, a “cake artist,” incurred the wrath of Colorado when he politely declined to design a wedding cake for a same-sex couple. Although the small business owner gladly sold cakes to anyone, Mr. Phillips drew a personal moral line at extending his artistry to designs that promoted racism, depicted indecency, included profanity, or conflicted with his religious beliefs.
Colorado’s state-ordained civil rights commission ordered the cake maker to make same-sex wedding cakes or stop making wedding cakes. His choice. Mr. Phillips chose to seek judicial relief. The Colorado state courts heard Mr. Phillips’ expensive appeal but sided with the state. Now the U.S. Supreme Court will decide.
Trinity Lutheran is a precursor to Masterpiece Cakeshop and, for Mississippians, invokes HB 1523, the controversial 2016 religious freedom state law reinstated by the U.S. Court of Appeals for the Fifth Circuit in June 2017.
Predictions are a dollar a gross, and mine is the Free Exercise Clause contained in the First Amendment – “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof” – is as simple as it sounds. Specifically, the Supreme Court will side with the disparaged cake baker and confirm the repressive government lacks power to make Jack Phillips, me, or you, undertake some act that is abhorrent to our sincerely held religious beliefs.
Then, there will be no need for Mississippi’s HB 1523.
» Ben Williams is a Mississippi attorney. Email Ben at MBWJ@aol.com. Ford Williams is a sophomore at the Savannah College of Art & Design (SCAD).