The Supreme Court’s 2013 Term: Missing Justice O’Connor
By Leslie C. Griffin | October 30, 2013
The Supreme Court’s new term, which started on October 7, includes several important cases concerning religion. The docket may also dismantle key precedents set by Justice Sandra Day O’Connor, who ushered in landmark decisions about government-sponsored prayer, abortion, and religious freedom—all of which are implicated in cases that the Court will hear this term.
President Reagan appointed O’Connor to the Supreme Court in 1981. She retired from the Court in 2006 and was replaced by Justice Samuel Alito. Before her service on the Supreme Court, she had been an Arizona state senator and state court judge. She remains the last justice to have held elective office, bringing a unique understanding of politics to the bench. She was frequently the swing voter who provided the essential fifth vote to form a majority in close cases. In that role, O’Connor drafted concurrences and majority opinions that identified a specific constitutional standard to resolve the controversy.
In this term’s cases, federal courts have applied O’Connor’s precedents in their decisions. If the justices follow O’Connor’s reasoning, those courts’ decisions will be affirmed. If the justices repudiate O’Connor’s legacy, the nation can expect more government-sponsored religion and less abortion or contraception. Either way, the current Supreme Court term has the potential to shift precedents and shape jurisprudence on liberty and equality for decades to come.
During Justice O’Connor’s tenure, the Court decided many Establishment Clause challenges to government-sponsored prayer and public displays of religious symbols. In 1983, she voted with the majority in Marsh v. Chambers to uphold the constitutionality of a state-paid Nebraska chaplain’s offering prayers at the beginning of each legislative session. The Court reasoned that legislative prayer was a historical practice accepted by the first Congress, who understood (better than we do) what was constitutional. The following year, in Lynch v. Donnelly, O’Connor provided the fifth vote to uphold the constitutionality of a Pawtucket, Rhode Island, Christmas display that included a nativity scene surrounded by Santa Claus, a Christmas tree, and a banner reading Seasons Greetings.
O’Connor’s concurrence in Lynch famously proposed the endorsement test for deciding Establishment Clause cases. The government may not endorse religion, the justice who understood politics wrote, because “[e]ndorsement sends a message to nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community.” A crèche surrounded by secular holiday symbols could not reasonably be interpreted to endorse religion, she wrote, any more than the legislative prayers in Marsh did. “Such government acknowledgments of religion serve, in the only ways reasonably possible in our culture, the legitimate secular purposes of solemnizing public occasions, expressing confidence in the future, and encouraging the recognition of what is worthy of appreciation in society. For that reason, and because of their history and ubiquity, those practices are not understood as conveying government approval of particular religious beliefs.” Thus O’Connor applied endorsement to Marsh–style government prayer as well as public religious displays.
Since 1983, the lower courts have applied Marsh to numerous prayer cases in state legislatures, city council, and school board meetings. In a case currently before the Court, the Second Circuit Court of Appeals ruled that prayers before the board meetings of the Town of Greece, New York, violated the Establishment Clause because they endorsed a Christian viewpoint. Observing that in “practice, Christian clergy members have delivered nearly all of the prayers relevant to this litigation, and have done so at the town’s invitation, . . . the town’s prayer practice must be viewed as an endorsement of a particular religious viewpoint,” namely Christianity.
The Town of Greece has asked the Court to rule that Marsh permits legislative prayers for historical reasons and that the endorsement test does not apply to government prayer cases. Under that reasoning, the Second Circuit should not have considered the predominantly Christian character of the Town of Greece’s invocations. Some Court observers even hope that the Court will take this opportunity to get rid of the endorsement test entirely. In a case about a cross at a veterans’ memorial, Justice Samuel Alito, O’Connor’s replacement on the Court, has already expressed some skepticism about the “so-called ‘endorsement test.’” The result could be an Establishment Clause jurisprudence more sympathetic to government-sponsored prayers and, eventually, to the presence of more religious symbols on public property.
In 1992, Justice O’Connor was part of the five-justice majority that saved the constitutional right to abortion in Planned Parenthood of Southeastern Pa. v. Casey. The Court’s “undue burden” standard, which prohibits regulations that put a substantial obstacle in the path of a woman seeking an abortion, is her handiwork. In 2000, she provided the fifth vote to invalidate a Nebraska law outlawing partial birth abortion in Stenberg v. Carhart. O’Connor’s concurrence in Carhart argued the Nebraska law was inconsistent with Casey because it lacked an exception for the health of the mother and imposed an undue burden on the woman’s right to end her pregnancy before viability. In 2007, however, O’Connor’s replacement, Justice Alito, provided the fifth vote in Gonzales v. Carhart to uphold a similar federal partial birth abortion law even though it banned an abortion procedure and included no health exception for the mother.
The Oklahoma Supreme Court recently relied on Casey to dismiss as unconstitutional an Oklahoma law regulating abortions that use prescription medications instead of surgery. The drugs used in those abortions—RU-486, misoprostol, and methotrexate—are approved by the Food and Drug Administration (FDA), which in 2000 established a Final Printed Label containing dosage and timing guidelines for the drugs’ use. Since then, however, as is common medical practice, many doctors have pursued off-label uses of these drugs with different doses and timing from the final label. Many medical abortions are now performed by off-label means. The new Oklahoma law, however, requires all medical abortions to follow only the protocols explicitly authorized by the FDA label.
Confused? So, apparently, was the Supreme Court, which granted review of the case in Cline v. Oklahoma Coalition of Reproductive Justice and promptly asked Oklahoma to clarify what uses of the drugs the Oklahoma law actually prohibits. Depending on the answer, Cline raises the possibility that the Court could limit Casey (by asking the state court to apply it more restrictively) or, as in partial birth abortion, permit a ban on an additional abortion procedure without regard to women’s health needs.
The Court is also hearing an abortion case from Massachusetts, McCullen v. Coakley, where the First Circuit Court of Appeals upheld a law making it a crime to “enter or remain on a public way or sidewalk” within thirty-five feet of the entrance, exit, or driveway of a “reproductive health care facility.” The appeals court relied on a 2000 case, Hill v. Colorado, which upheld a Colorado statute establishing 100 feet buffer zones around abortion clinics. Although six justices—including Justice O’Connor—approved that Colorado law, only two of them—Justices Ruth Bader Ginsburg and Stephen Breyer—remain on the Court along with all three dissenters—Justices Antonin Scalia, Anthony Kennedy, and Clarence Thomas. The Massachusetts appellants, individuals who “seek to engage women who may be seeking abortions in close, kind, personal communication,” have asked the Court either to limit the application of Hill or to overrule it on First Amendment speech grounds.
Religion, Contraception, Obamacare
The Affordable Care Act (ACA) may get another day in the Supreme Court. The solicitor general has already filed a petition asking the Court to review constitutional challenges to the ACA’s contraceptive mandate made by Hobby Lobby, the large arts and crafts retailer, which is arguing the mandate violates the free exercise of religion. Any Court decision will impact numerous businesses across the country. Unfortunately, we will not have the opportunity to learn how Justice O’Connor would have struck the balance between religious and reproductive freedoms, where she was most influential as a justice.
According to the contraceptive coverage mandate, employee group health benefit plans must contain preventive care coverage that includes FDA-approved contraceptive methods and sterilization procedures. Numerous secular, for-profit companies and their Catholic, Christian, or Mennonite owners challenged the mandate as a violation of their constitutional free exercise rights and the statutory protection of the Religious Freedom Restoration Act (RFRA) which prohibits the federal government from “substantially burden[ing] a person’s exercise of religion.” Federal circuit and district courts have issued conflicting decisions addressing whether for-profit companies can exercise religion and whether they are “persons” protected by RFRA.
These cases are distinguishable from similar challenges to the mandate by religious non-profits like the University of Notre Dame or Wheaton College, which were accommodated by the Obama administration’s decision to have third party insurance companies, instead of religious employers, provide the coverage directly to employees.
Government accommodations of religion always raise the possibility that the government is establishing—shall we say endorsing?—religion. The Court has long acknowledged that the government may accommodate the free exercise of religion without violating establishment. In Corporation of Presiding Bishop of Latter-day Saints v. Amos, for example, the Court ruled unanimously that the Deseret Gymnasium, a secular, non-profit facility run by a religious organization associated with the Latter-day Saints, could constitutionally be exempted from Title VII’s prohibition on religious discrimination. Similarly, today’s secular, for-profit corporations argue they should be exempted from the ACA.
The concurrences of Justices William Brennan and Sandra Day O’Connor in Amos, however, sounded cautionary notes about the ruling. Justice Brennan argued that a different constitutional analysis should apply to for-profit organizations than to non-profit. Giving accommodations to for-profit organizations, he argued, “puts at the disposal of religion the added advantages of economic leverage in the secular realm, . . . and has the effect of furthering religion in violation of the Establishment Clause.
Justice O’Connor also warned that some accommodations of religion violate the Establishment Clause. Any “government action lifting from religious organizations a generally applicable regulatory burden,” she cautioned, advances religion. Because religious exemptions advance religion, the Court must “separate those benefits to religion that constitutionally accommodate the free exercise of religion from those that provide unjustifiable awards of assistance to religious organizations.” Although Justice O’Connor agreed on the facts of Amos that an exemption for a non-profit organization was permissible, she specifically questioned the constitutionality of an exemption of for-profit companies.
The solicitor general cited Amos in his petition to the Court. The solicitor general knows as well as anyone else, however, that Justices O’Connor and Brennan no longer serve on the Court, and that this Court may be more anti-establishment and pro-free exercise than its predecessors. We await the exciting possibility that by the end of this term, the solicitor general will return for his second round defending Obamacare before the high court, defending a different health care mandate against the claim that it violates religious freedom.
The contraceptive mandate pits religious freedom against women’s equality. In another famous religion concurrence, Justice O’Connor wrote, “When bedrock principles collide, they test the limits of categorical obstinacy and expose the flaws and dangers of a Grand Unified Theory that may turn out to be neither grand nor unified.” This term we wait to see if the Court can find a grand or unified path through the thickets of equality and liberty.
Leslie C. Griffin teaches constitutional law as the William S. Boyd Professor of Law at the University of Nevada, Las Vegas Boyd School of Law.
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