By Dean Erwin Chemerinsky
Dean Erwin Chemerinsky
The docket for October Term 2013 is now set, and once more the United States Supreme Court has an unusually large number of high-profile cases of great potential significance. As always, the most important rulings likely will not come down until the end of June. But expect major rulings with regard to freedom of religion, freedom of speech, affirmative action, separation of powers, and criminal procedure.
A surprisingly large number of cases this year involve First Amendment issues. Some of the most important involve the separation of church and state.
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In Marsh v. Chambers (1983) 463 U.S. 783, the Supreme Court held that prayers before legislative sessions do not violate the Establishment Clause of the First Amendment — but the Court stressed that these must be non-sectarian prayers. Since 1999, the Town of Greece, in upstate New York, has begun its monthly town board meeting with a prayer. Except for a few months in 2008, these prayers have always been explicitly Christian in their content. In Town of Greece v. Galloway (2d Cir. 2012) 681 F.3d 20, cert. granted (2013) 133 S.Ct. 2388, which was argued in November, the Court will consider whether this violates the First Amendment.
No cases will receive more media attention than the two involving the contraceptive mandate under the Patient Protection and Affordable Care Act: Sebelius v. Hobby Lobby Stores, Inc. (10th Cir. 2013) 723 F.3d 1114, cert. granted (2013) 134 S.Ct. 678, and Conestoga Wood Specialties Corp. v. Sebelius (3d Cir. 2013) 724 F.3d 377, cert. granted (2013) 134 S.Ct. 678.
The Patient Protection and Affordable Care Act requires that the Department of Health and Human Services promulgate regulations to ensure that insurers provide coverage for preventative medical care. These regulations mandate that employers include payments for contraceptives in their insurance coverage. There are exceptions for religious institutions, so the Catholic Church would not need to provide this in their insurance coverage. Also, entities affiliated with a religious entity, such as a Catholic university, can opt out of this requirement by completing a two-page form.
Both cases before the Supreme Court involve corporations that are not religiously affiliated in any way. They have challenged the contraceptive mandate and argue that they wish to operate in accord with their religious views and do not wish to provide contraceptive coverage. Their claims are brought under a federal statute, the Religious Freedom Restoration Act, which says that the government can significantly burden religious freedom only if its action is necessary to achieve a compelling government purpose. In Conestoga Wood Specialties, there is also the issue of whether the regulations violate the free exercise clause of the First Amendment.
The threshold question in these challenges is whether a corporation that is otherwise secular can claim to have a "religion." For example, one of the cases was brought by Hobby Lobby, a corporation that has over 500 stores in 41 states and employs over 20,000 people.
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Moreover, even if corporations can claim to have religious beliefs, there is the question of...
