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Nine this time

The 2017 Supreme Court term looks like a barn burner

Nine this time

The Supreme Court building (Jon Elswick/AP)

Cookies appeared at a Heritage Foundation event for the fall 2017 Supreme Court term, specially baked from Masterpiece Cakeshop—the bakery at the center of a major Supreme Court case in a very consequential term starting this fall.

"I would never turn away a gay couple, I serve everybody, but I don’t make cakes for all events,” said Jack Phillips, the Christian baker in the case, who declined to make a custom cake for a gay couple’s wedding. He recalled telling the couple, “It’s not you, I just can’t do a cake for this event.” He recounted that in the days following the conversation, he received numerous profanity filled calls and at one point a very specific death threat.

Many controversial cases that were on hold while the court had only eight justices last year are taking center stage this fall. A major gerrymandering case from Wisconsin (Gill v. Whitford) comes up the second day of the term, and then there's a fascinating case on sports gambling in New Jersey that addresses whether the federal government can block a state law (Christie v. National Collegiate Athletic Association and New Jersey Thoroughbred Horsemen’s Association v. National Collegiate Athletic Association).

Court watchers found last term interesting in its own way, as the justices found creative detours around tie decisions. But it was snoozy. Aside from the Trinity Lutheran decision—which is already having big consequences—the term had few blockbuster cases. Now nap time is over.

Justice Anthony Kennedy has staked strong positions (alternately) in favor of religious exercise and gay rights, so Masterpiece will bring a clash of two of his pet issues. 

Right off the bat the court will hear arguments over President Donald Trump’s travel ban. A theme is already emerging for the term: challenges to the Trump administration’s executive actions and the limits of its power. That’s a subject where we’ll be closely watching new Justice Neil Gorsuch, who historically has had a limited view of executive power. Though his position on executive power is still unknown, in a short time we’ve already learned a lot about how the new justice will operate, as he has staked a position in the most conservative wing of the court with Justice Clarence Thomas.  

Masterpiece Cakeshop v. Colorado Civil Rights Commission

In 2012 a gay couple sued Christian baker Phillips after he declined to design a cake for their wedding. Phillips said that he has since lost 40 percent of his business. This case could decide similar cases in courts from Christians in the wedding industry facing charges of violating civil rights statutes. Christian florist Barronelle Stutzman, represented in the Arlene’s Flowers case, has also appealed to the Supreme Court this term, but it seems unlikely that the court would hear her case since it has already agreed to hear Masterpiece.

The justices’ votes for this aren’t clear: Gorsuch has taken very conservative stances so far on the court but has close to no record on gay rights. And Justice Anthony Kennedy has staked strong positions (alternately) in favor of religious exercise and gay rights, so this will bring a clash of two of his pet issues. The Masterpiece oral argument isn't on the court calendar yet.

Trump v. International Refugee Assistance Project and Trump v. Hawaii

The cases consolidated here are complicated, and the Supreme Court’s vague order allowing the travel restrictions on six Muslim-majority countries to go forward under certain conditions only added to the complexity. Lower courts have been debating what the Supremes meant when they allowed the ban to go into effect but exempted refugees with a “bona fide relationship” in the United States.

The bottom line is that Trump’s executive action is largely in force, and the high court’s willingness to let it take effect is a promising sign for the Trump administration. The court will hear the case on Oct. 10, though it will consider whether the issue is moot because the 90-day travel restriction would have expired by then (there’s a wider 120-day executive ban on refugees that expires at the end of October). To illustrate the complexity here, lawyers are even debating when the expiration date is.

If the court moves past the question of standing, the justices will explore whether the executive order violated the Establishment Clause by targeting largely Muslim refugees, or if it was properly within national security interests as the Trump administration argues.

 

OTHER MAJOR CASES MAY BE be in the pipeline for this term, though the court hasn’t yet agreed to hear them. Several circuits have heard or are hearing cases about whether the word “sex” in Title IX and Title VII (federal anti-discrimination statutes) should also include sexual orientation or gender identity, which could have implications for religious organizations. And elsewhere two circuits are split over the issue of legislative prayer, a conflict that might reach the high court. Other potential cases include:

Neely v. Wyoming Commission on Judicial Conduct and Ethics

In Wyoming, municipal judge Ruth Neely said she couldn’t perform same-sex marriages based on her religious beliefs, though no same-sex couple had sought a marriage from her. The state Commission on Judicial Conduct and Ethics sought to remove her from office and fined her. Neely took her case to court, and the Wyoming Supreme Court ruled she shouldn’t lose her judgeship, but publicly censured her and blocked her from performing marriages. Neely has appealed to the U.S. Supreme Court.

In Wyoming municipal judges aren’t required to perform marriages and can decline to do so for any secular reason, and Neely’s lawyers argued other judges were willing to carry out same-sex ceremonies should they arise. “It becomes a religious test for office,” said Kim Colby, attorney for Christian Legal Society, which filed a brief on the side of the judge. “It’s going to weed out a lot of faiths very quickly.”

Xue v. Sessions

Ting Xue, a Chinese Christian, attended an underground house church in China where he was arrested in 2007. He was interrogated over several days, beaten, and jailed in a crowded cell with one pail as a toilet that wasn’t emptied. His mother paid a massive fine to win his release, and the police forbade him from returning to church and required him to report his weekly activities to them. Later under further pressure, Xue fled the country and applied for asylum in the United States.

A U.S. immigration judge determined that what Xue experienced doesn’t meet the legal standard for “persecution,” and rejected his asylum claim. The 10th U.S. Circuit Court of Appeals agreed, saying that the legal standard for persecution "requires more than just restrictions or threats to life and liberty.” Xue’s lawyers are now appealing to the Supreme Court, arguing that circuit courts have conflicting definitions of persecution. If the government forces secret practice of religion, does that constitute persecution?

Xue's lawyers also argued that including that a Xue victory would not open the “floodgates” of applicants because each asylum seeker would still have to prove a specific record of punishment by the government.

Emily Belz

Emily Belz

Emily is a senior reporter for WORLD Magazine. She is a World Journalism Institute graduate and previously reported for the The New York Daily News, The Indianapolis Star, and Philanthropy magazine. Emily resides in New York City. Follow her on Twitter @emlybelz.

Comments

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  • Steve SoCal
    Posted: Thu, 09/21/2017 01:57 am

    Thanks for the heads up about these cases.  We should pray for the justices, and that God's will would be done.

    I am amazed that, in the United States of America, what happened to Ting Xue could actually not be considered persecution.  I am certain that anyone who holds that view would consider it persecution if it happened to them.

  • RC
    Posted: Thu, 09/21/2017 09:29 am

    It appears they are more worried about the possible volume of people seeking asylum than what really constitutes persecution. So they violate common sense to redefine the meaning of persecution.

  • socialworker
    Posted: Wed, 09/27/2017 09:52 am

    It surprises me too because when I have discussions about the influx of people coming from Mexico and South America it is always brought up that the children that cross the border can't go back because it's not safe in their country.  There are drug gangs and poverty.  Well.....yeah!  But that doesn't mean they are persecuted.  If having to live with drug gangs and poverty warrants staying in the U.S., I certainly would agree that Xue's experience would.