The Supreme Court returned from its winter recess today with just one new grant from last week’s private conference, but the newest addition to the court’s merits docket is a significant one. Next term the justices will hear oral argument in Fulton v. City of Philadelphia, a challenge by several foster parents and Catholic Social Services to the city’s policy of cutting off referrals of foster children to CSS for placement because the agency would not certify same-sex couples as foster parents. After they lost in the lower courts, the challengers went to the Supreme Court, where they asked the justices to weigh in on three questions: what kind of showing plaintiffs must make to succeed on this kind of religious discrimination claim; whether the Supreme Court should reconsider its 1990 decision in Employment Division v. Smith, holding that the government can enforce laws that burden religious beliefs or practices as long as the laws are "neutral" or "generally applicable"; and whether the government violates the First Amendment when it makes participation by a religious social-services agency in the foster-care system contingent on actions and statements by the agency that conflict with the agency’s religious beliefs.

Elsewhere on today’s order list, the justices asked the federal government for its views on Americans for Prosperity Foundation v. Becerra and Thomas More Law Center v. Becerra, a pair of challenges to a policy of the California attorney general’s office that requires registered charities to disclose the names and addresses of their major donors. The lawsuits were filed by a pair of conservative advocacy groups, who argued that the policy violates the First Amendment, but the U.S. Court of Appeals for the 9th Circuit ruled for the state. There is no deadline for the federal government to file its brief.

The justices sent Roman Catholic Archdiocese of San Juan v. Feliciano, a case involving the First Amendment, the rights of religious organizations and the extent to which courts must defer to how those organizations have structured themselves, back to the Puerto Rico Supreme Court for another look. The case arose when a pension fund for Catholic school employees in Puerto Rico stopped making payments, prompting the employees to sue not only the fund, but also the Archdiocese of Puerto Rico and the Catholic church there. Courts in Puerto Rico treated all of the Catholic institutions on the island – the archdiocese, the dioceses that comprise the archdiocese and the parishes – as one legal entity and ordered nearly $5 million in assets to be seized from the churches to pay the pensions. The archdiocese asked the Supreme Court to review the ruling; in June, the justices asked the federal government for its views. The federal government told the justices that the Puerto Rico decision "violates the fundamental prohibition on denominational discrimination" and recommended that the court either vacate the lower court’s ruling and send it back for further proceedings or grant review.

In an eight-page per curiam – that is, "by the court" – opinion today, the justices followed the federal government’s suggestion to vacate the Puerto Rico Supreme Court’s ruling and send the case back. The justices explained that the Puerto Rico trial court did not have the power to issue orders seizing the Catholic church’s assets and requiring it to pay millions of dollars because the archdiocese had moved the case to federal court. The justices acknowledged that, as the federal government had argued, the state court’s lack of authority to hear the case might not "prevent us from addressing additional errors, including those asserted under the Free Exercise Clause." But, the justices continued, "we think the preferable course at this point is to remand the case to the Puerto Rico courts to consider how to proceed in light of the jurisdictional defect we have identified."

Justice Samuel Alito filed a concurring opinion, which was joined by Justice Clarence Thomas. In Alito’s view, the Supreme Court of Puerto Rico had interpreted a century-old U.S. Supreme Court decision incorrectly when it concluded that the Catholic Church in Puerto Rico is a single entity for purposes of being held liable in civil lawsuits. It would have been, Alito argued, "appropriate for us to reverse the decision below on that ground were it not for the jurisdictional issue that the Court addresses." Moreover, Alito continued, "the Free Exercise Clause of the First Amendment at a minimum demands that all jurisdictions use neutral rules in determining whether particular entities that are associated in some way with a religious body may be held responsible for debts incurred by other associated entities."

The justices denied review in the case of Texas death-row inmate Rodney Reed, who was convicted of the 1996 murder of Stacey Stites but has consistently maintained that he is innocent. Reed’s case has garnered widespread support, including from celebrities such as Kim Kardashian West, Rihanna and Beyoncé. The prime suspect in the case was originally Stites’ fiancé, Jimmy Fennell, a police officer who was later sentenced to 10 years in prison for kidnapping and sexually assaulting another woman. But suspicion shifted to Reed, who is African American, when his DNA matched the DNA of a small amount of semen in Stites’ body. Reed was convicted by an all-white jury and sentenced to death.

Justice Sonia Sotomayor filed a statement regarding the denial of certiorari in which she noted that another proceeding in Reed’s case is ongoing in the Texas courts. In that proceeding, she stressed, "Reed has identified still more evidence that he says further demonstrates his innocence. It is no trivial moment that the Texas courts have concluded that Reed has presented a substantive claim of actual innocence warranting further consideration and development on the merits." Moreover, Sotomayor added, the court’s refusal to hear Reed’s petition today "does not pass on the merits of Reed’s innocence or close the door to future review." Sotomayor concluded by observing that, for her, "there is no escaping the pall of uncertainty over Reed’s conviction" or "any denying the irreversible consequence of setting that uncertainty aside."

The court also denied review in Patterson v. Walgreen, involving the question of exactly how much employers must do to accommodate an employee’s religious practices. Under federal law, an employee cannot be fired for practicing his religion unless the employer can show that it cannot "reasonably" accommodate the employee’s practice without "undue hardship." The petitioner in the case, Darrell Patterson, is a Seventh-day Adventist who does not work from sunset on Friday to sunset on Saturday. In 2011, Walgreen fired Patterson after he did not come to run a training session on a Saturday afternoon; instead, Patterson held the training a few days later, so that the company still met the internal deadline that had prompted it to schedule the Saturday training.

When Patterson sued Walgreen in federal court, the company defended itself by arguing that it had tried to accommodate Patterson by offering him a lower salary and a demotion; moreover, it added, allowing him to take Saturdays off would be an "undue burden" because it might need to hold trainings on Saturdays more often in the future. After the lower courts agreed with Walgreen, Patterson went to the Supreme Court, asking the justices to weigh in on three issues: whether an accommodation, like the demotion and pay cut offered by Walgreen, can be "reasonable" when it doesn’t completely eliminate the conflict between an employee’s job and his religious practice; whether the employer must show an actual, rather than a speculative, burden; and whether the justices should overrule Trans World Airlines v. Hardison, their 1977 decision holding that employers can only be expected to shoulder minimal costs to accommodate their employees’ religious beliefs. In March of last year, the justices asked the federal government for its views; the federal government recommended that the justices deny review of the first two questions but take up the third question.

The justices denied Patterson’s petition today. Alito concurred in the denial of review, in an opinion joined by Thomas and Justice Neil Gorsuch. Alito agreed with the federal government that the justices should consider whether to overrule Hardison, but he concluded that Patterson’s case was not an appropriate one in which to take up that question.

The justices turned down Arizona’s request to be able to file an original action – that is a complaint in the Supreme Court – against California, challenging the constitutionality of California’s application of a tax to Arizona limited-liability corporations that invest in California corporations. Thomas dissented from the denial, filing an opinion that was joined by Alito. Thomas argued in his brief statement that although the justices "have discretion to decline review in other kinds of cases, we likely do not have discretion to decline review in cases within our original jurisdiction that arise between two or more States."

In Baldwin v. United States, the justices turned down a request to decide whether to overrule the court’s 2005 decision in National Cable Telecommunications Association v. Brand X Internet, holding that a court’s interpretation of a statute trumps an agency’s subsequent construction that is entitled to deference only if the earlier court decision held that its interpretation was dictated by the plain text of the statute, leaving no room for the agency to exercise discretion. The question came to the court in the case of Howard and Karen Baldwin, who filed a claim for a refund of $167,663 with the IRS. When the IRS said that it had never received the claim, the Baldwins filed this lawsuit, and at trial they were able to prove the date on which the claim was postmarked, consistent with federal law and the longstanding precedent of the U.S. Court of Appeals for the 9th Circuit. But on appeal, the 9th Circuit ruled for the IRS, concluding that an August 2011 interpretation of federal law by the IRS superseded the prior law. [Disclosure: The author of this post was among the counsel to the respondents in Brand X.]

Thomas dissented from the denial of review in Baldwin. Although he was the author of the court’s decision in Brand X, Thomas wrote that he would now "revisit" the ruling. Thomas began by asserting that the Supreme Court’s 1984 decision in Chevron v. Natural Resources Defense Council, holding that courts should generally defer to an agency’s reasonable interpretation of an ambiguous statute that it administers, "is in serious tension with the Constitution," the Administrative Procedure Act "and over 100 years of judicial decisions." But in any event, Thomas continued, he had "become increasingly convinced that Brand X was still wrongly decided because it is even more inconsistent with the Constitution and traditional tools of statutory interpretation than Chevron."

The justices did not act today on two challenges to the constitutionality of the Affordable Care Act’s individual mandate, which they considered for the first time at last Friday’s conference. The petitions have been relisted for consideration at this Friday’s conference; orders from that conference are likely on Monday, March 2, at 9:30 a.m.

This post was originally published at Howe on the Court.

Amy Howe, Justices to take up case involving faith-based adoption agencies and same-sex couples, SCOTUSblog (Feb. 24, 2020, 3:33 PM), https://www.scotusblog.com/2020/02/justices-to-take-up-case-involving-faith-based-adoption-agencies-and-same-sex-couples/