By Wesley Juhl
The Supreme Court begins hearing cases in two short weeks, and scholars and lawyers have been watching the most noteworthy cases already on the docket, including cases as diverse as prisoners’ religious rights and what country is listed on the passports of people born in Jerusalem.
And while federal courts across the U.S. have been ruling on same-sex marriage cases since the justices struck down the Defense of Marriage Act last year, legal experts differed about if and when the court will take on the issue and which state’s case the court will choose to hear.
One of the court’s religion cases this term deals with Arkansas inmate Gregory Holt, also known as Abdul Maalik Muhammad. Holt is seeking to get rid of prison rules prohibiting him from growing a beard.
Holt said Islam requires him to grow a beard, and the case, Holt v. Hobbs, raises issues of prisoners’ rights to religious exercise.
The prison allows Holt to have a prayer rug, a Quran and a special diet, but prison officials said the beard would be a security threat. The prison maintains a beard could be used for smuggling, and if Holt shaved, it would make it too easy for him to escape.
“On its face, the government’s arguments are fairly improbable,” Hashim Moopan, a lawyer at Jones Day, said.
Moopan is a former clerk to Justice Antonin Scalia and lent his expertise to a term preview panel at the Georgetown Law Center.
“I think the bottom-line result is almost certainly going to be the prisoner is going to win,” Moopan said, adding the bigger question may be how much deference justices will grant to prison officials.
The Supreme Court also has two other First Amendment cases on the docket.
Anthony Elonis was convicted for making threats on Facebook, but Elonis’ defense asserts the aspiring rapper wrote the posts as lyrics.
Threats are in a class of unprotected speech, and Elonis v. United States will examine the current standard that determines whether speech is a true threat.
“It seems as though the Roberts court has never met a First Amendment case it didn’t like,” said Leslie Kendrick, a University of Virginia Law School professor.
Exaggerations and idle threats are prevalent on the Internet, and qualifying speech as a threat based on the perceptions of others, as the Elonis case did, could have a “cooling effect” on free speech, the experts said.
“Arguably, they’ve decided this question before, but arguably, too, they weren’t totally focused on it,” Kendrick said.
Reed v. Town of Gilbert, Ariz., probes the town’s regulations of a church’s signs. The church argued that regulating the size, placement and duration of signage based on the type of sign is content-based discrimination.
“That is a very messy Supreme Court closet that they might be trying to clean out,” Kendrick said at an annual preview panel at the Wilson Center.
It may be possible that the town wasn’t trying to discriminate between types of messages, she said, but just to regulate the aesthetic quality.
And there are other discrimination cases slated for the court’s consideration.
Peggy Young’s job at UPS required her to be able to lift up to 70 pounds, and when her doctor told her not to lift more than 20 pounds due to her pregnancy, she asked her employer to put her on light duty.
UPS employees are given light duty assignments based on seniority, UPS said, and its accommodations policy is “pregnancy-neutral” and compared pregnancy to a back injury that happened off the clock and wouldn’t be recognized by the Americans with Disabilities Act.
“Congress did amend the Americans with Disabilities Act law, but the regulations didn’t seem to solve the problem,” said American University Law School Professor Stephen Wermiel.
Wermiel noted another interesting aspect of the Young case.
“There are always a couple of cases every term that make wonderfully strange bedfellows, and this is one of them,” he said.
A number of anti-abortion groups joined with organizations such as the American Civil Liberties Union on Young’s side.
Two cases from Alabama may test the limits parts of the Voting Rights Act of 1965 left standing after last summer’s Supreme Court decision, when justices struck down a key part of the law.
The Alabama cases question whether the state legislature’s redistricting plans were motivated by race, and if minority voters have lost any of their ability to elect a candidate of their choice.
“This case is momentous for a number of reasons,” said Janai Nelson, associate director and counsel for the NAACP Legal Defense and Educational Fund.
Nelson said it’s the first time the court will take on a voting rights case since dealing the law a “devastating blow.” The court struck down the part of the Voting Rights Act that would have required a federal review of new voting laws, including redistricting, in Alabama.
“There are partisan dimensions to this case, and there’s also the main issue on the table, which is the racial concern,” she said.
The Republican-led legislature maintained 10-year-old districts that kept most of the black population packed into the same districts.
Black leaders in Alabama insisted the black supermajority districts unfairly lessoned the ability of minority voters to influence elections in other, mostly white, districts. They called it a case of racial gerrymandering.
“It is all about partisan advantage and has nothing to do with race,” said Michael Carvin, a partner at Jones Day. “I think the court will see what’s going on.”
A case based on what goes on a passport could have substantial impact on presidential power and foreign relations.
In Zivotofsky v. Kerry, an American citizen who was born in Jerusalem petitioned the court for the right to put his birthplace as Israel on his passport.
Congress passed a law in 2002 that recognized Jerusalem as the capital of Israel and should allow him to do so, the case said.
But the executive branch has never officially recognized Jerusalem as a part of Israel. Former President George W. Bush and President Barack Obama both refused to enforce the law, alleging that to do so would hurt their ability to hold peace talks and make the U.S. seem hypocritical.
“It’s basically using the passport power as a pretext,” Georgetown University law Professor Martin Lederman said.
He said it’s really a question about separation of powers and who speaks for the U.S. overseas.
“I think the court will be nervous about holding that Congress has the power to contradict the executive branch on this view,” Lederman said.
The question of marriage equality will have many Americans waiting eagerly for the court’s opinion.
The court has not yet chosen all the cases it will hear this term, and the justices have cases from Utah, Virginia, Oklahoma, Wisconsin and Indiana waiting for them. Some involve both the question of marriage equality and the recognition of same-sex marriages from other states, while others just challenge their state’s ban. Experts were unsure if justices will choose to tackle the whole package or just the marriage issue.
“This set of issues is basically the greatest civil rights issue of our time,” Neal Katyal said at the Wilson Center.
Katyal, a professor at Georgetown University Law Center, was acting solicitor general for the Obama administration. He is arguing for marriage equality in the Utah case.
Katyal and other experts agree that the court will most likely take up the issue during this term.
“There’s a pretty good argument that, at this point in time, the patchwork is such that people are living in an intolerable state of legal limbo,” Katyal said.
If the court chooses to take the case, it could be argued as soon as February and decided in June, said Paul Clement, a lawyer with Bancroft and former solicitor general. He defended DOMA before the court last year.
“I don’t think there’s any wiggle-room left,” Katyal said. “The moment they take one of these, it’s game over for one side or the other.”
Reach reporter Wesley Juhl at email@example.com. SHFWire stories are free to any news organization that gives the reporter a byline and credits the SHFWire.