Gorsuch could quickly be key vote in 3 cases
WASHINGTON — Neil Gorsuch joins the Supreme Court today, just in time to cast potentially significant votes in cases that pit religious liberty against gay rights, test limits on funding for church schools, and challenge California’s restrictions on carrying a concealed gun in public.
Such issues arise either in appeals filed by conservative groups that have been pending before the justices for weeks, or in cases to be heard later this month.
Gorsuch’s votes in those matters might give an early sign of whether the court’s conservatives — with their 5-4 majority restored by his confirmation — will pursue an activist agenda.
The cases include a Colorado baker’s claim that he deserves a faithbased exemption from the state’s anti-discrimination law after he refused to design a wedding cake for a gay couple. The justices have been considering his appeal behind closed doors since December but have taken no action.
The delay might mean that one of the justices has been writing a dissent from the majority’s refusal to hear the appeal, or that the conservatives have been awaiting the ninth justice. Gorsuch is set to be sworn in this morning, and when the justices meet in their next private conference, on Thursday, he is to be among them.
If the court agrees to take up the issue, “I think Justice Gorsuch would be with us,” said Jeremy Tedesco, a lawyer for the Alliance Defending Freedom, the Arizona-based group that appealed on behalf of the Masterpiece Cakeshop and its owner, Jack Phillips.
Meanwhile, gunrights advocates are challenging a California law that requires gun owners to show “good cause” before they are issued a permit to carry a concealed gun in public.
County sheriffs enforce this policy, and in San Diego, Los Angeles and other urban counties, permits are rarely granted. In San Diego, for example, officials have taken the position that fearing for one’s personal safety is not enough to demonstrate “good cause.”
Gun-rights lawyers have sued, contending that this policy violates the Second Amendment and its implied “right to self-defense.”
Last year, the 9th U.S. Circuit Court of Appeals upheld San Diego’s refusal to grant concealed-carry permits and ruled that “the Second Amendment does not preserve or protect a right of a member of the general public to carry concealed firearms in public.”
In January, Paul Clement, who was U.S. solicitor general under President George W. Bush, filed an appeal in Peruta vs. California, arguing that “millions of … ordinary law-abiding citizens” were being denied their rights to carry guns for self-defense.
The justices are set to reconsider that appeal Thursday. It takes four votes to accept an appeal and decide the case.
This “could be the most important Second Amendment case since D.C. vs. Heller,” said University of California-Los Angeles law professor Adam Winkler, referring to the 2008 ruling that for the first time upheld an individual’s right to have a handgun. Since then, “the court has not said the right extends beyond the home and out into the public,” he said.
Meanwhile, on April 19, the court is to hear arguments in a longpending religious-rights challenge to state bans on the funding of church schools. About threefourths of states have constitutions that prohibit spending taxpayer money “directly or indirectly, in aid of any church, sect or denomination of religion,” as Missouri’s Constitution puts it.
Advocates of “school choice” protest that these laws stand in the way of public funding for religious schools. In January 2016, shortly before Justice Antonin Scalia died, the court voted to hear a Missouri case that challenged these funding bans as reflecting unconstitutional discrimination against religion.
The dispute looks minor at first glance. Trinity Lutheran Church in Columbia, Missouri, operates a day care and preschool center, and it applied to a state program that donates old tires used for “rubberizing” playgrounds. Other nonprofits could obtain the tires, but Missouri officials turned down Trinity’s application because of the state’s ban on funding for churches.
Lawyers for the Alliance Defending Freedom, the Arizona group representing the Colorado baker, sued on behalf of Trinity, contending that the state’s funding ban conflicted with the First Amendment’s protection for the “free exercise” of religion.
Despite granting the appeal, the justices did not schedule the case for argument last year after Scalia’s death. And this year, they kept it off the schedule until late April, during the final arguments for this term. That led many to assume that the justices knew they were split 4 to 4 on this issue and needed a ninth justice to break the tie.