Sun Sentinel Palm Beach Edition
Gorsuch key in locked court
New justice likely to tilt bench to right on their cases
WASHINGTON — Neil Gorsuch joins the Supreme Court this week 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 concealed-weapon restrictions.
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 may give an early sign of whether the court’s conservatives will pursue an activist agenda.
The cases include a Colorado baker’s claim that he deserves a faith-based exemption from the state’s anti-discrimination law after he refused to design a wedding cake for a gay couple.
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 Arizonabased group which appealed on behalf of the baker.
Gun-rights advocates are challenging a California law that requires gun owners to show “good cause” before receiving 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, officials hold, simply fearing for one’s personal safety is not enough to demonstrate “good cause.”
Gun-rights lawyers have sued, contending this policy violates the Second Amendment and its implied “right to self-defense.” But last year, the 9th U.S. Circuit Court of Appeals upheld San Diego’s refusal to grant concealed carry permits and ruled “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, the former U.S. solicitor general under President George W. Bush, filed an appeal in Peruta v. California, arguing that “millions of … ordinary lawabiding citizens” are being denied their rights to carry guns for self-defense. The justices are set to reconsider that appeal Thursday. It takes four votes to grant an appeal and decide the case.
Meanwhile on April 19, the court will hear arguments in a challenge to state bans on the funding of church schools. About three-fourths 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” say 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. The Trinity Lutheran Church operates a day care and preschool center in Columbus, Mo., 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 Lutheran’s application because of the state’s ban on funding for churches.
Lawyers for the Alliance Defending Freedom, the Arizona group that defended the Colorado baker, sued on behalf of Trinity Lutheran, contending 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, the final arguments for this term. That led many to assume the justices knew they were split 4-4 on this issue and needed a ninth justice to break the tie.
The Trinity Lutheran case could mark a major shift on public funding for religious schools. During the 1970s, the high court frowned on tax funds flowing to religious schools on the grounds this aid violated the 1st Amendment’s ban on “an establishment of religion.” Since then, the court has slowly backed away from what was formerly described as the “wall of separation between church and state.”
Stanford Law Professor Michael McConnell, a former federal judge who served with Gorsuch, says the court may want to make clear the government may not discriminate against religious entities. States need not offer subsidies to private schools, he said, or in this case, donate scrap tires to non-profit organizations. But once they do so, he contended they may not exclude a church-run day care center.
Gorsuch took a pro-religion position as an appeals court judge in Denver. In the Hobby Lobby case, he voted in dissent for giving a religious exemption to a Christian family that refused to pay for certain contraceptives for its employees. And he dissented twice when the appeals court ruled against a county’s official display of the Ten Commandments and a state’s program for erecting crosses along the highway to honor fallen state troopers.
While the high court may opt to bypass the cases of the Colorado baker and California gun laws, the justices will issue a written ruling in the Trinity Lutheran case before leaving on their summer recess.