The agenda for the U.S. Supreme Court term that began this month has zero cases involving the two religion clauses of the First Amendment.
That’s quite the change after the important religion rulings the past two years, not to mention religious conservatives’ and liberals’ agitation after the 2022 Dobbs decision, which overturned Roe , which had legalized abortion nationwide.
So religion-watchers may not be aware that the court soon takes up two potentially tectonic cases involving — would you believe it — small businesses that fish for herring off the New England coast and say they shouldn’t have to pay their federal monitors. The cases are Loper Bright v. Raimondo (docket # 22-451), newly combined Oct. 13 with Relentless Inc. v. Department of Commerce (docket #22-1219). Oral arguments could come as soon as January.
This gets into the weeds of administrative law, an area that normally does not set pulses pounding but here involves the hot political dispute over powers exercised by federal agencies. Conservatives assert that agencies have long been interpreting and enforcing laws in ways that Congress never intended or has never defined, thus usurping legislative prerogatives and violating the Constitution’s “separation of powers.”
Background: The two fishing companies seek relief by overturning the Court’s highly influential 1984 precedent in Chevron v. Natural Resources Defense Council. This unanimous decision granted wide deference to federal agencies in “reasonable” interpretations, applications and enforcement of ambiguous laws passed by Congress.
The list of Loper briefs posted by the invaluable SCOTUSBlog.com shows the variety of interests that include 48 of the 50 states lined up on the two sides and the Republican U.S. House of Representatives, along with e.g. the AFL-CIO, American Cancer Society, Environmental Defense Fund, Gun Owners of America and e-cigarette industry.
You are waiting for the religion-beat angle?
Also — notably — this list includes the Little Sisters of the Poor. This Catholic order, which cares for impoverished seniors, has been entangled in a decade of courtroom struggles over its claimed conscience right of exemption from Obamacare birth control coverage required by Democratic administrations. That history is surveyed in the brief (.pdf here) by the Becket Fund.
Then there’s the Christian Employers Alliance, represented by the Alliance Defending Freedom in this brief (.pdf here). It protests that without authorization by Congress, federal agencies are imposing pro-choice abortion policies, some of which violate state laws, and regarding the transgender issue forcing doctors to perform, and employers to finance, gender transition procedures they believe are harmful.
Other complaints: religious colleges are directed to mix the sexes in women’s showers and bedrooms, while athletic organizations are “ending women’s sports.”
As the employers’ group sees things, the executive branch employs “immense pressure” to “placate its political base” by making “the federal administrative state increasingly susceptible to agendas that abuse the fundamental freedoms sand values of the American people.”
That’s about as newsworthy as it gets, even though America is currently distracted by two wars overseas, Donald Trump’s defense against multiple court prosecutions, and the tumultuous 2024 election campaign.
Meanwhile, the Supreme Court could decide this term to take up four disputes that are pending in the pipeline, as outpointed in Court walkups by Tyler Arnold of the Catholic News Agency and Kelsey Dallas of the Deseret News.
* Food and Drug Administration v. A.H.M. Did the F.D.A. avoid required safety procedures in its go-ahead for online and mail-order sale of the abortion drug mifepristone?
* Missouri Department of Corrections v. Finney. In an employment trial involving a lesbian, should jurors be rejected because they oppose same-sex marriage on religious grounds?
* Tingley v. Ferguson. Does Washington State’s ban on “conversion therapy” to change one’s “sexual orientation or gender identity” violate the speech and religious rights of a private family counselor?
* Vitagliano v. Westchester County. What buffer zones are appropriate for pro-life “sidewalk counselors” speaking with, or even simply praying for, women outside abortion clinics?
Then a media matter that just might come down the road someday. As a former libel defendant regarding a religion article, The Guy must note the Court’s Oct. 3 decision not to review the Don Blankenship libel case. The concurrence by Justice Clarence Thomas renewed his plea for the Court to re-examine the broad libel protection the Warren Court gave the news media in New York Times v. Sullivan (1964). Justice Neil Gorsuch agreed with him in 2021.
Loper case contacts: Alliance Defending Freedom attorney Matthew Bowman (mbowman@ADFlegal.org and 202-393-8690). Becket Fund attorney Eric Rassbach (erassbach@becketlaw.org and 202–955-0095). The Biden Administration and Commerce Secretary Gina Raimondo are represented by Solicitor General Elizabeth Prelogar (202-514-2203) and Assistant Attorney General Todd Kim (202 – 514-2701).
FIRST IMAGE: Stained glass art from the website of the Little Sisters of the Poor.