End of Supreme Court term approaches: 2 lgbt-related cases still pending

by on June 14, 2010  •  In Constitutional law, Supreme Court

The Supreme Court operates on an academic-style calendar, with each term beginning in the fall and running through roughly the end of June.  Before it leaves for summer break, the Court issues decisions in all cases that have been argued during that term. So we are now in the final few weeks of the 2009-2010 term, with about 20 cases still undecided, and three more days on which the Court has announced it will issue opinions: this Thursday the 17th and the following two Mondays, June 21 and 28.

Among the undecided cases are Christian Legal Society v. Martinez, a CLS challenge to a policy at UC-Hastings Law School that requires all student organizations seeking recognition by the school (with the attendant benefits) to abide by a non-discrimination policy, and Doe v. Reed, in which individuals who signed petitions to put a measure to rescind the state's domestic partner law on the Washington state ballot challenged the release of their names under a state freedom of information law.

While predicting based on oral arguments is always perilous, the enterprise may be even less sensible for these two cases because in both, there is reason to expect that the opinion issued this month may not finally resolve the issue.  In the CLS case, several justices expressed frustration about whether a live controversy exists as to a central factual aspect of the case (whether the Hastings policy has in fact been applied across the board, or whether CLS was somehow singled out). In Reed, although the argument for a blanket exemption from the FOIA law for petition signers seemed to be a non-starter, a ruling to that effect might just send the case back to the lower courts for a more focused inquiry into whether an exception is justified for signers of this petition, because of their supposed fear of retaliation by pro lgbt rights advocates. Even less than final resolutions in these cases may produce some interesting opinions.

Tune in again Thursday…


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