Religious liberty cases on docket for Supreme Court’s return

Oct. 7 (UPI) — The U.S. Supreme Court is expected to grapple with religious liberty cases ranging from transgender rights to religious ads on public transit to abortion when justices return to the bench Monday.

The court has accepted a few such cases for review, with decisions on whether to hear appeals in other cases pending.

The court’s acceptance of some of these cases could make the term “a blockbuster for religious liberty,” the Becket Fund for Religious Liberty says.

Becket and other groups that litigate constitutional issues involving religion say these are the cases to watch this term:

Public money for private schools

A case at the center of attention is Espinoza vs. Montana Department of Revenue. The state Legislature established a program in 2015 that gives tax credits to Montana residents who provide supplemental funding to public schools or donate to scholarship funds to send children to private schools, including ones that are religiously affiliated.

The Department of Revenue determined the program violated the Montana Constitution by aiding religious schools and adopted a rule that excluded them. Three parents who filed suit challenging the rule won a decision in their favor but the state Supreme Court reversed the ruling, saying the program violates the Constitution’s “stringent prohibition on aid to sectarian schools.”

The parents appealed to the U.S. Supreme Court.

Walter Weber, senior counsel for the American Center for Law and Justice, which filed a friend-of-the-court brief supporting the parents, said the case is about school choice. The plaintiffs are seeking to affirm the principle that excluding eligible participants from a neutral government program simply because they are religious violates the Constitution, he said.

“School choice is a win-win,” Weber wrote on the ACLJ website. “Parents select the program that best suits their educational plan for their children. Taxpayers save the money that public schools would otherwise have had to spend on the children.”

Patrick Elliot, senior counsel for the Freedom From Religion Foundation, called the court’s decision to hear the case troubling and said using state aid for religion — directly or indirectly — is inherently coercive of taxpayers.

He also fears a decision upholding the program could have a “horrendous impact” on the rights of citizens under state constitutions.

“Depending on how broadly the justices decide the case, it could potentially undo one of the bedrock principles on which this nation was founded: Churches have no right to dip into the public purse,” Elliot said.

The case has been accepted for review but arguments have not been scheduled.

Transgender, gay rights

On Tuesday, the Supreme Court is scheduled to hear arguments in the case of a transgender employee who was fired from a Detroit-area funeral home after informing the owner of plans to transition from male to female and begin dressing as a woman.

Funeral home owner Thomas Rost said he dismissed Aimee Stephens (formerly known as Anthony Stephens) for violating the business dress code, which required men to wear a suit. He also argues that as a devout Christian who interprets the Bible as teaching that gender is immutable, he “would be violating God’s commands” if a man presented himself as a woman while representing the company.

The question before the justices in Harris Funeral Homes vs. EEOC is whether Title VII of the Civil Rights Act of 1964 protects people against discrimination based on their gender identity.

The court also will hear arguments that day in two cases — Bostock vs. Clayton County and Altitude Express vs. Zarda — about Title VII protections of men who allege they were fired from their jobs for being gay.

The Alliance Defending Freedom, which is representing Rost, says the common original understanding of the term “sex” means the objective biological categories of male and female. Title VII’s ban on sex discrimination forbids businesses from treating employees of one sex better than employees of the other sex, ADF lawyers say.

“ADF is also arguing that the decision of whether to amend Title VII to include ‘sexual orientation’ and ‘gender identity’ should be left to Congress, not unelected government bureaucrats or judges,” Jordan Lorence, ADF senior counsel and director of strategic engagement, wrote on the organization’s blog.

David Cole, legal director of the ACLU, which represents Stephens, said on the At Liberty podcast that members of Congress obviously were not thinking in 1964 about how the Civil Rights Act might apply to LGBTQ people.

“But the argument that we have made, and that a number of lower courts have accepted, is that discrimination on the basis of sexual orientation and discrimination on the basis of transgender status are essentially subsets of sex discrimination,” Cole said.

Free speech

Other cases on the groups’ watch lists have been appealed to the high court but the justices have not decided whether to accept them for review.

One is a First Amendment challenge to a policy prohibiting religious advertisements on buses, Archdiocese of Washington vs. Washington Metropolitan Area Transit Authority.

In another free speech case, Price vs. City of Chicago, the petitioners, who engage in “sidewalk counseling,” are targeting a law that creates a “bubble zone” around abortion clinics. The ordinance prohibits people from coming within a 50-foot radius of the entrance of an abortion clinic or other medical facility or closer than eight feet to someone else “for the purpose of passing a leaflet or handbill to displaying a sign to or engaging in oral protest education or counseling with such other person.”

Other cases involve a florist who declined to make flower arrangements for a same-sex wedding; teachers who were fired or not rehired for failing to meet the standards at religious schools; a Seventh-day Adventist who says his employer failed to accommodate his Sabbath observance; and a student and her parents who allege a school district’s lesson about Muslims violated the First Amendment’s bar against government establishment of religion.

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