Naturally, everyone is debating the marriage cases, elaborating the arguments for or against standing and worrying (correctly I think) that the Court this term might move the civil rights ball forward on sexual orientation discrimination and backward on race discrimination. It seems likely to be an historic term for Equal Protection law.
Next year – my bet is that issues of religious exemptions from anti-discrimination principles will dominate the Court’s civil rights focus. Why? Three reasons:
First, businesses, nonprofits and individuals have filed almost 40 challenges to the provision of the health reform law that mandates offering insurance coverage for contraceptives. One of the cases was argued yesterday in the D.C. Circuit. Just pause for a moment and consider: 40 federal court lawsuits, filed in every circuit, representing a variety of plaintiffs, a few of which have secured injunctions against enforcement of the law. Someone is spending a nice chunk of cash on getting this issue to the Supreme Court, and it seems quite likely to me that they will.
Second, the New Mexico Supreme Court is likely to rule this year in a case in which a lesbian couple brought suit against a photography studio that refused to provide services for their commitment ceremony. The studio, represented by the Alliance Defending Freedom, is arguing a First Amendment defense. If defendants lose in the state court, they will seek cert in the U.S. Supreme Court. I would be surprised if there aren’t four Justices willing to take the case.
Third, the Washington Supreme Court is being asked to decide whether the state’s anti-discrimination law allows religious employers to discriminate on bases other than religious affiliation. In Ockletree v. Franciscan Health System, plaintiff alleges that he was discriminated against because of disability and race. The defendant is not claiming that the discrimination was based on anything related to religion, but instead argues that it is completely exempt from the anti-discrimination law. This kind of blanket exemption is what some religious groups are seeking in ENDA.
The clerics are coming.