Alison, Liz, and Rebecca recap the recent Supreme Court term and its implications for religious liberty. They break down the Court’s rulings on conversion therapy bans, religious rights for prisoners, and transgender sports bans in public schools. They also discuss the ever-expanding "shadow docket" and the Court’s alarming preference for deciding cases with no public hearing, briefing, or transparency.
Cases
Chiles v. Salazar
Landor v. Louisiana
West Virginia v. B.P.J. and Little v. Hecox
Mirabelli v. Bonta
Danco Laboratories v. Louisiana Application
St. Mary Catholic v. Roy
Rebecca Markert:
Welcome to We Dissent, the podcast with secular women attorneys discussing religious liberty issues in our federal and state courts and our work to keep religion and government separate. I'm Rebecca Markert with Americans United for Separation of Church and State.
Liz Cavell:
I'm Liz Cavell with the Freedom From Religion Foundation.
Alison Gill:
And I'm Alison Gill with the National Women's Law Center.
Rebecca Markert:
Today is the episode that everybody has been waiting for. This is our annual tradition. Today we're going to recap the Supreme Court term. So we are going to discuss all of the decisions that came down in June, all of the cases that we previewed for you over the last year. We're going to talk about what the court decided in those cases. And then if there's some time at the end, we're going to talk a little bit about statistics coming from the Supreme Court and any other newsworthy items from the Supreme Court. So we're excited about this episode. It's not the greatest tradition, but it's a tradition that we have here We Dissent.
Liz Cavell:
Well, I will say the term just ended at the end of June, basically. Usually by July 1st, the court tries to have announced all of its decisions or by the 4th of July weekend. And then the new term starts usually October. When does the new term start?
Alison Gill:
October. Yeah, that's right.
Liz Cavell:
October. So I mean, the term is too long. I honestly could use a longer break. However, there's not much time between the end of the term and the start of the new term. So it's important to kind of like take stock because a lot has happened since last October. The court has done a lot of things, a lot of damage some might say. So this will be the roundup.
Alison Gill:
Even though it is fairly long, they've decided less and less decisions every year. And I know we're going to talk about the shadow docket later, but there's very few decisions, merit decisions on the court this year. Several of them are relevant to us, which we'll be discussing. I just have to say also, I am just glad there's no vacancy, at least for now. So that is something that is – At least for now. Was waiting for on the last day and the day after to see if there was a vacancy. And there is not, at least not yet.
Liz Cavell:
I know what a whirlwind.
Alison Gill:
Yeah.
Rebecca Markert:
All right. So the first case that we are going to recap today is Chiles versus Salazar. This is a case that Liz and I previewed for y'all back in November. This is the case that involves the conversion therapy ban. You may recall that back in 2019, Colorado passed a law preventing mental health professionals from providing conversion therapy to clients under the age of 18. This is a therapy that is incredibly damaging to our friends in the LGBTQ community and is something that has been banned in what, almost 20 some states. There is an exception in Colorado's law for anyone who is engaged in the practice of religious ministry. So here comes Kaley Chiles, who is a licensed Christian counselor in the state of Colorado. And she files a lawsuit against this statute claiming it violates her rights to free speech and to free exercise. She believes that clients can quote, "accept the bodies that God has given them and find peace."
And that quote, "People flourish when they live consistently with God's design, including their biological sex." So this goes all the way up to the Supreme Court, which only heard the free speech arguments. They did not hear any of the arguments on the free exercise clause, but religion did animate this case, of course. The decision came down. It was an eight to one decision written by Justice Gorsuch.
Liz Cavell:
Words you never want to hear.
Alison Gill:
Especially in pride month. Yeah.
Rebecca Markert:
Justice Jackson dissented and Justice Kagan wrote a concurrence that Sotomayor joined.
Liz Cavell:
This was a doozy. So Rebecca and I covered this one after oral arguments. And so we were reflecting on the background of the case and what we heard at oral arguments. And I will say, based on what we heard at oral arguments, this isn't a surprising outcome. I think I was pretty floored by the eight to one spread. That this decision that the licensed mental health counselor had her free speech rights violated by being regulated in her practice by the state of Colorado that had eight votes on the United States Supreme Court was kind of a head scratcher for me. And Justice Jackson, we'll talk about her dissent later, basically kind of lays out why. But your brain always goes to like when this decision came out kind of earlier in the timeline of decisions, controversial decisions that we were waiting to hear from, this was one of the first ones.
And it's one of those where your brain is like, why? What's going on? Tell me this is a horse trading situation where these votes are being bartered for other better votes because this is a pretty–. The majority opinion plays it off as though this is just the only plain reading of the free speech clause anyone could ever have. But this is actually a pretty remarkable thing that happened, which is teasing out speech as protected in this absolute way that's professional speech.Because like Rebecca said, this law already has an exception for clergy. If you would go and get religious counseling from your local pastor or youth pastor or your priest or whatever, they're not impacted by this law at all. They could counsel according to their faith and their beliefs. This is a licensing requirement for licensed mental health counselors. So Kaley Chiles, she's a Christian, but she also has a professional license to practice mental health counseling in the state of Colorado.
And just like all medical professionals are regulated by state law, this is just one of many regulations. Here's a really harmful, unproven practice that we are going to prohibit licensed professionals from experimenting on kids with because we know that it's harmful. And the court basically, because it involves talk therapy as part of the treatment is saying, no, this is actually speech. It's not different just because it is treatment or therapeutic or it's professional and it's licensed. It's actually, it's her private speech and she has the right to basically try and convert kids, trans and gay kids, in the same way that a therapist would be allowed to support or affirm a trans or gay patient. So it's kind of a remarkable thing when you think about how broadly the implications of this could reach in terms of whether and how states can regulate speech that's incidental to the practice of medicine or the practice of therapy or counseling or any of the many other things that states regulate with professional licensing regulations.
Alison Gill:
So I have some background in this work. I previously helped develop and create an advocate for several of these bills when I was with the Human Rights Campaign. And before that the Trevor Project. So it's an area where I've worked a lot in helping pass them, for example, in the District of Columbia and New Jersey. And one of the reasons we hoped that this would not reach First Amendment sort of issues is because of the, as you're saying, the licensure by the state. This is a licensing restriction. And in many ways, if you think about it, when you have a license from the state, that is the state saying that you are qualified to practice. So it's like a statement by the state in a sense. So this is in a way actually limiting the free speech of the state to say by having a license or restriction, it's basically saying, "Well, if you do these practices, we think you don't deserve a license." But it's just sort of saying, "Well, that's not acceptable here because you can't have this sort of framework." There's two things I want to flag. One, this is another one of ADF's patented —
Liz Cavell:
Yes. How did we miss that?
Alison Gill:
Pre-enforcement strategies, right? That means that there's no actual victims visible here. And the harm is theoretical and the person who wants to do the harm, Kelsey Chiles was it, or Kaley Chiles, is also, they just sort of talk about. Their side is basically idolized. They get to lay out exactly what they want their viewpoint to be, and the other side is ignored. That's what we see in these pre-enforcement challenges. We don't see the victims of this behavior, and there are many of them. I've worked with advocates for years who had suffered through conversion therapy and it is devastating. I've seen it rip apart families. I've seen it cause lifelong mental health conditions. I've seen it cause suicidal ideation. It's very dangerous. And none of that is covered here, which is very unfortunate. Secondly, free speech is just the wrong framework for this.
Liz Cavell:
Totally.
Alison Gill:
It just is. And it's like the conservatives have used free speech in so many different areas. It's the same thing when they use it actually along religious freedom too. It's the wrong framework. It's the wrong framework in Citizens United, around campaign finance, the wrong framework in 303 Creative, around non-discrimination, and in Janus around unions. And yet they just keep using it in all these different ways in order to maximize sort of cutting down regulations. I read this great article. I was trying to find it the day after. If you imagine this, we're talking about viewpoint neutrality in the context of treatment makes very little sense. If someone had basically said, "Well, some people say cancer is good. Some people say that's bad. Who are we to say?" It doesn't make any –
Liz Cavell:
Totally–
Alison Gill:
It's just the wrong framework.
Liz Cavell:
It does not make sense. And basically what we're getting into right now, what we're reflecting is see also Justice Jackson's dissent because her dissent points to this exact problem with the opinion and the decision, which is like this makes no sense in the context of professional licensing. No one would ever think this or say this. And this is just a total sham basically for reaching this desired sort of ideological political outcome, which is why it's sort of baffling that it gets the support of two justices that should know better.
Alison Gill:
I think that they were trying to hint a path forward for states. And maybe I agree, I was disappointed, but at the same time, I think they were trying to hint a path forward. And Colorado did turn around and pass a revised version of the law that is not specific to conversion therapy. It's a little bit more broad. And that passed very quickly after this. So I think there are ways to go about it that are not as precise maybe, but this law, it heightened protections for survivors of conversion therapy and provided more room for malpractice claims after the fact, for example. So it's more like it's harder to preempt, but easier to sort of create sort of consequences for when this behavior is people are harmed by it.
Liz Cavell:
So I'm curious, Alison, and do you know enough about the Kagan's concurrence to draw that connection, like make that case? What did Kagan tease out in her concurrence that seemed like a path forward for protecting minors against conversion therapy?
Alison Gill:
Yeah. She was trying to differentiate a viewpoint neutral law. Restrictions on viewpoints, viewpoint restrictions are the area of First Amendment that's like the most prescribed. You can't have those. And so if you were to say, well, you can't say that. I don't know. They were to prohibit people from saying that George Washington is best president ever, for example, that would be a specific viewpoint that'd be prescribed. So you can't do that. But if you were to prescribe like, okay, if you're going to talk about presidents, these are the parameters for it, but they're not talking about specific viewpoints. You're putting on the content, there's a little bit more flexibility in terms of. So I think that's what's going on here. They're sort of able to sort of draw boundaries around the activities, but not as so much as sort of restricting specific viewpoints.
Liz Cavell:
I mean, Kagan is agreeing to the holding that Colorado's law as applied, although it was not applied to Ms. Kaley.
Alison Gill:
No, it wasn't applied.
Liz Cavell:
But okay, we'll just skate over that. As applied, violated the free speech clause. It wasn't viewpoint neutral. So in other words–
Alison Gill:
Right
Liz Cavell:
She agrees and Sotomayor agrees that Colorado was. Like, this also makes no sense.
Alison Gill:
Yeah. It's a hard viewpoint to parse. I'll be honest with you. I mean, she's trying to draw a distinction between viewpoint neutrality and also saying you can regulate content while being viewpoint neutral. It's very – –
Liz Cavell:
You can't say whether you can or can't do conversion therapy because you can't acknowledge that it's a harmful practice because that's favoring a specific viewpoint. It's like sometimes the thing is just wrong. Justice Jackson's dissent is laying out how this makes no sense and actually is very scary. It's opening up a very scary road for how we think about state's ability to regulate what people, licensed professionals can do to us and tell us to do ourselves.
Alison Gill:
I agree.
Liz Cavell:
I mean, it's extremely dangerous.
Alison Gill:
I mean, what about lawyers for that matter? I mean, there's all sorts of professions that use speech as their primary professional method.
Liz Cavell:
We've actually seen this play before in the old abortion wars.
States trying to regulate, well, compel speech, force providers to read a statement that's like abortion can cause, I don't know, all the things that anti-abortion activists want to say abortion can cause. And forcing providers to read a certain statement, say a certain thing in the course of treating someone and express a certain viewpoint. And so it's like we've seen this before deployed for this exact same kind of end, which is a partisan kind of political or ideological end. It's just really scary to see it in this way where it's like you have a practice that is universally regarded as harmful and we have to pretend it's not universal because there's a group of people who ideologically are so opposed to trans and gay youth that we have to pretend like there's not a consensus in the medical community. That would be the only way to differentiate cancer in the examples that you're talking about.
And think about this, cancer's like one that everyone is like, no, not that. But think about vaccines, right?
Alison Gill:
I mean, there are people that don't believe HIV causes AIDS. So just to give you one example, right? I mean, there are people with all sorts of fringe viewpoints on. I mean, we have one of them who's a Secretary of Health Human Services at the moment.
Liz Cavell:
Literally. I mean, think about that. A state really needs to be careful when it's banning certain treatments and practices because speech is involved. I mean, it scares me.
Rebecca Markert:
What I think we're talking about here too is just highlighting the hypocrisy of the court. We've talked about this ad nauseum in previous episodes, but it feels like here, especially the Kagan concurrence, is really doing all of these gymnastics to try to make it make sense and why they've joined the majority here. And the majority opinion itself says the First Amendment's not a word game, but it's all a word game. Everything that you're doing, everything that you're saying, this is all just a play on words here. So that's hypocrisy number one. And then the second hypocrisy that I'll point out, which is what you've already identified, Liz, is that you're pretending that you're not restricting or compelling speech in any other context, especially the abortion context. You guys were exactly on the opposite side of this 20 years ago. And really, it just doesn't matter as long as the outcome is what Christian nationalists want.
And they got it, unfortunately, in this case.
Liz Cavell:
And just a reminder, what a coincidence. The facts were just so distinguishable in the Tennessee case that we talked about last year involving a state that instead of having a conversion therapy ban, had a ban on gender affirming care.
Rebecca Markert:
Exactly. Yes.
Liz Cavell:
The Supreme Court upheld that law and they would tell you it's because it involved hormonal replacement and hormonal blocking.
Alison Gill:
No words involved.
Liz Cavell:
Right. No speech. It's just called gender affirming care. So I guess the affirming is just the part where you just wordlessly hand a child their hormone blockers.
Rebecca Markert:
Doctors never talk.
Liz Cavell:
Nope. Not in my experience. I mean, right. The majority would tell you like, oh, distinguishable facts when we weren't even talking about speech. But the reality is, what do you know? The result is the gender affirming care ban states win and the states that want to protect kids from conversion therapy, which is proven harmful, they lose somehow. And so it's more of the sort of ends driven analysis we've come to expect from this illustrious court and also important to flag like Alison did, another one of these totally manufactured cases where nobody was being injured because the therapist that brought the case doesn't do conversion therapy. She doesn't currently engage in it, but she just wants to know that she can.
Alison Gill:
Right.
Liz Cavell:
Not normally the standing requirements that we've been accustomed to in federal court, but hey.
Rebecca Markert:
I have a question for you, Alison. We talked about how there are similar laws to this Colorado's conversion therapy ban in 20 other states. And you had just mentioned that –
Alison Gill:
Yeah, there are about 23. I think I just looked it up while we were speaking.
Rebecca Markert:
And you mentioned Colorado fixed it pretty quickly after this ruling came down or addressed it in some manner to lessen the impact in their state. But what about the other states?
Alison Gill:
Well, this came out just a couple weeks ago. And as you know, most states have legislative sessions that start earlier in the year and they often end by June. So I think most of them probably have not updated it. I haven't looked at the Colorado law closely enough to know if it's unique or different from others. A lot of these are pretty standard across the different states. So I bet states are going to probably start taking action in their next cycle. But obviously I'm not involved with those efforts, so I can't say for sure. But that's what I would think just to be safe that they'd take actions to sort of change their laws and update them.
Rebecca Markert:
Well, a very disappointing decision. And even though it wasn't decided under the free exercise clause, it is ultimately a win for Christian nationalists who are trying to get their viewpoints to be protected over other civil rights protections.
Liz Cavell:
For sure. It definitely had the flavor of what we've seen in so many of these ADF cases, which is, it's almost like they deliberately say, "Oh, we're not going to consider free exercise. We want everyone to get the signal that this is not a religion case."
Alison Gill:
It'd be a really hard one for them on the religious side because they'd run into, there's no RFRA, right? It's a state law. They'd run right into, well, does the First Amendment require this? And that would have to challenge Smith directly, right? Yeah. And I don't know if they want to take that on to Supreme Court. So this is a safer path.
Liz Cavell:
Yeah. All right. Well, we obviously have a lot of thoughts and reactions to that case, but we do have to move on because there's more.
Alison Gill:
Oh yay.
Liz Cavell:
So another case that we were watching, and Rebecca and I did actually cover this case right after the Chiles case because it also had an early-ish oral argument in the term. That case was called Landor. And it's kind of one of the, because there's so much controversial cases every term, it was a little bit under the radar, but the facts are pretty memorable. So this was the case of a man that was incarcerated in a jail in Louisiana, Damon Landor. He is a Rastafarian. So he had been a long time adherent to this extremely important Rastafarian ritual, which is growing out his dreadlocks and not cutting them at all for 20 years. He showed guards at the Louisiana Jail a Fifth Circuit decision binding on that jail saying that shaving his head would violate RLUIPA, which is a statute we'll talk about when we explain the decision.
But basically his religious right to have his dreadlocks, his hair growth, because it's based on his religious practice, is protected under the law. And that guards and the jail can't shave it even though that's part of their jail regulations. The guards ignored him, literally took his printed out case law and threw it in the trash can, held him down, confined him to a chair and shaved his dreadlocks anyway.
Rebecca Markert:
And I just want to point out that the time that this happened, he had already been transferred twice from different jails in Louisiana. And this was the third location that he was going to be housed in. And he only had a few weeks left on his sentence.
Liz Cavell:
Right.
Rebecca Markert:
I just like to point that out just because it's unbelievably heartbreaking.
Liz Cavell:
Just beyond egregious state behavior and cruelty. Again, this was unquestionably in this case a violation of the law. So back to the law, this is actually a statute that is a federal statute on the books. It's called the Religious Land Use and Institutionalized Persons Act. So catchy. RLUIPA, also an amazing acronym. RLUIPA?
Rebecca Markert:
We say RLUIPA.
Alison Gill:
I say RLUIPA. I don't know. You say
Liz Cavell:
RLUPA. Look at this.
Rebecca Markert:
So
Liz Cavell:
RLUIPA. RLUIPA. What did I say?
Alison Gill:
You said RLUIPA or something. I
Liz Cavell:
I did not say that.
Alison Gill:
I think that's the worst version I got to say.
Liz Cavell:
All right. RLUPA. RLUIPA. Guys, it's R-L-U-I-P-A. You decide. And what it does is it restricts local governments. It has a whole land use component that's not relevant to this case, but basically it's all about religious exercise. So governments can't implement land use regulations that burden religious exercise, but also the government can't place substantial burdens on religious exercise for incarcerated people, i.e. People in prisons and jails, state run prisons and jails. They should be able to practice their faith without undue restriction from the state. So states are bound by this under federal law because they take federal funding from the federal government. And so part of the deal is they're bound by this law. There's a mechanism, if your rights are violated under the law to sue. So Damon Landor sued the guards that did this to him in their individual capacities for damages, money for violating RLUIPA.
That seems to be the enforcement mechanism in the law. And so this is a little bit technical in terms of what came up to the Supreme Court. But basically, you might remember if you listened to our episode on this, what the argument sort of focused on was whether or not the RLUIPA statute actually allows people to sue state prison officials like these guards in their individual capacity, not as state actors. In their personal capacities, can they be sued? And why is this important? Help me explain this.
Alison Gill:
So basically people, these guards, if there's personal consequences to them for violating the law, right? If they can lose their house or something because they broke the law and harmed somebody and violated their constitutional rights, they're more likely not to do that. If you're going to sue, and for example, the state's going to cover and say, well, we're going to shield them and they suffer no actual consequences and there's no impact on their job or anything like that, then they might not care as much. So holding them personally accountable matters. And in some circumstances, the state is shielded as well. There's various technical reasons. Sometimes you can't sue the state or can't recover money from the state. So that can be another situation where you want to see if you can recover from the individuals. Here, the policy was against it, so they can't sue and get policy change.
It clearly was a constitutional violation. There's no actual–. There might be intentional infliction of emotional distress and other sorts of torts like that, but it's not like we're talking about monetary damages. So going after these folks who are being frankly cruel and purposely violating the law makes a lot of sense in this context.
Liz Cavell:
Right. Perfectly put.
Rebecca Markert:
You want people whose civil rights have been violated by the state to have some way to vindicate those rights.
Alison Gill:
Yeah. I have a lot of discussion I want to go into in a bit on this after we get to it. So please go into the decision though.
Liz Cavell:
So this decision was six to three, also written by Justice Gorsuch. The dissent this time joined by Kagan and Sotomayor and written by Justice Jackson. And what they decided is that this statute, RLUIPA, does not actually allow individuals to sue state officials in their individual capacity. And they basically use this sort of tortured analysis under the spending clause, which is the part of the constitution that gives the feds the power to control state behavior by passing statutes like this. Because this statute hinges on federal funding, like the state prisons and jails accept federal funding and in exchange, they agree to be bound by laws like RLUIPA. That's why there's authority there for the federal government to pass regulations. So the court did this analysis of like, okay, under the spending clause, what are the individual prison guards? For example, in this case, what can they be said to have agreed to be bound by in a statute that rests its authority on the spending clause?
So in other words, kind of like a contract. Think of this statute, says the court, Gorsuch, as a contract between the state of Louisiana and the federal government. Well, these guards, they weren't a party to that contract. They didn't voluntarily and knowingly consent to be sued under the statute. Nevermind that they accepted jobs at this prison and this was a flagrant violation of the explicit terms of their employee code of conduct. But okay. Gorsuch says, no, actually RLUIPA doesn't allow suits against prison officials in their individual capacity, their personal capacity. So in other words, I guess this statute is unenforceable. Pretty disappointing and shocking given the conduct in this case. And also as Justice Jackson explained, and also they got at this in oral argument, makes no sense based on even just the plain terms of the analysis, which is these are not just passers by or even like independent contractors.
These are the guards that seek out jobs and become employed. And they actually do sign employment contracts and they do agree to be bound by the terms that the prison or the jail is bound by. They're not just like random rogue dudes off the street that just can't be held accountable for anything they do because they never agreed. It's just, again, like Chiles, it's an absurd way to frame what is happening. It's just this pretend sort of cold contract law analysis of what's fair to the prison officials in terms of being subject to lawsuits for their flagrant and knowing violation of people's rights.
Alison Gill:
There are just so many things wrong in this case. It's hard to even know where to start. I want to start another case actually called Tanzin v. Tanvir, which is from 2020.
Liz Cavell:
Oldie but goodie.
Alison Gill:
Yeah. Y'all might remember this. So this is a case where some other terrible federal agents did some other terrible things, basically. They sort of forced these Muslims to go into a mosque and spy on the mosque in violation of their religious rights. So this is a case about RFRA, the Religious Freedom Restoration Act, which is the Sister Act to RLUIPA.
Rebecca Markert:
Or our RLUIPA, if you're me.
Alison Gill:
Either one. It's a sister statues. They're both about religious freedom in different contexts. So in that case, the court said, "Well, you can sue these individual federal agents under RFRA because they violated religious rights." Okay, fine. The issue is there, the average person who's not religious has no ability to sue these federal agents. So let's say that they were ex-Muslims and they were forced to go into the mosque and spy. There would be no ability to sue under RFRA. So basically that's problematic in many ways because you have religious people getting more rights, the ability to sue when their rights are violated than non-religious people. Okay. So that's a problem in I think all of our estimations. So when I was at American Atheists, we submitted, I think the only amicus in support of the government and their position in that case for this reason, because non-religious people should not have fewer rights than religious people.
And that's how it came out. It came out nine zero. I think everyone was expecting it to come out that way. Fine. And now we get to this case and it comes out the opposite way. The difference is here, RFRA is based on the 14th Amendment. And RLUIPA is based on the spending clause. So RFRA is not based on states taking money. In fact, it doesn't apply at all to states. And that's another case called City of Boerne v. Flores. So that's a whole separate issue, but that does not apply to states. So after City of Boerne v. Flores, Congress went back and said, "Well, we want to bind states. So we can't use the 14th Amendment after this case. So what we're going to do is use a spending clause instead, which Congress often does to try to bind states." And that's what they did with RLUIPA.
And we see the outcome here where they're sort of putting forth and expanding this whole idea, contract idea. And this is such a bad fit. Talk about bad fits from before with the First Amendment context. This is another one. Listen, it's not actually a contract. The federal government can pass laws. They're not actually doing contracts. They have sovereign power. They can do stuff.
It's really outrageous. And in many ways, I guess it worked out that the religious folks did not get more rights in this case, but it should not be like this is the worst way to achieve that outcome ever. It's the worst possible way to achieve that outcome. It shouldn't be that you get less rights based on some weird theory of spending clause, which by the way, it has huge consequences of areas, which you can talk about in a moment. And if you're going to rule in RFRA that these violations should be compensated, then that should apply here too. It's just kind of outrageous.
Liz Cavell:
Yeah. Well, you're speaking to Justice Jackson's dissent, which I think her memoir is titled, I feel like I'm taking crazy pills because that's what all of her.
Rebecca Markert:
Right?
Liz Cavell:
That is literally the vibe of all of her dissents because she's the only person talking any sense about what's going on and the appropriate frame with which to view government activity, legislation.
Alison Gill:
Well, okay. Justices Kagan and Sotomayor did join her.
Liz Cavell:
Yes, that's true. That's true. And she's pointing out in her dissent the things that Alison is framing, which is like the spending clause is a constitutional grant of power to Congress to legislate. It's not like a contract negotiation. We didn't all agree to be bound by the terms of all the laws that have been passed by the federal government. That's just not how you view legislation. And the idea to apply a strict consent requirement to personal liability under the law is literally unprecedented. Just like Alison explained that we've had the closest Supreme Court precedent was unanimously in the other direction. And if in Justice Jackson's dissent, if anything, the circumstances here under RLUIPA should have been even more forceful than the reasoning in Tanzin because this is the only form of relief available in this context. And so it's just, again, crazy and scary because like in Chiles, what is the logical endpoint of this reasoning?
Laws require the consent of the person being regulated to be enforceable? What are we talking about here? And what does that mean?
Alison Gill:
Yeah. And it's funny too, because no one supported this. The religious freedom groups, they didn't support this. No one supported this. It's just the Supreme Court just. And I have to wonder why. Is it because the person's not Christian that they did this? It's just like a side example for them to roll out this incredibly broad undermining of the spending clause. But think about what's based in the spending clause. So many things. Non-discrimination laws, federal non-discrimination laws are based on the spending clause. Education laws, labor laws, healthcare laws, environmental laws, all of those are based on the spending clause. So they're all like Congress says, "Here's a bucket of money. Oh, there's strings attached to it." And if you can't hold people liable for violating it, you can only hold entities liable. Then that can be challenging in terms of enforcement. And what does that look like in the context of non-discrimination?
What does it look like in other contexts? It's very concerning.
Liz Cavell:
It's madness. Okay. As we predicted we would be, we are getting way too deep and bothered about all of these cases and we need to keep moving on.
But don't worry, we won't have any feelings about this next pair of cases. It's the trans sport bans. These were two cases. These are the decisions that came out the latest. I think they came out on the last day of the term. So the court held these and waited until pretty much the last minute to release their decisions on these cases. We covered these earlier, but these were two similar cases that were kind of taken up together, both at oral arguments and decided together. One was out of West Virginia, one was out of Idaho, and they both had passed laws on the books preventing trans women and girls from joining girls' sports teams in public schools. And these laws were what would have been clearly in any time past now seen as based on sex.
Laws that are based on the biological sex of the person. That's what it turns on. Two students, Lindsay Hecox in the Idaho case and BPJ, those are initials of the girl that was a then middle schooler in West Virginia who wanted to sue to be able to continue doing the sports that they were doing. Fast forward to, I mean, many years, the middle schooler is now a college aged person, but this was decided pretty much the way everybody figured that it would be.
Alison Gill:
All the justices unfortunately agreed that Title IX was not violated.
So that was one part of this. There was two types of claims. There was Title IX, right? And then there was equal protection claims under the 14th Amendment. And so Title IX, all the justices agreed that it was not violated. And there was slightly narrower holding on that front by the more liberal justices. For the other one, it was six three. And I think the more liberal justices wanted to. They felt like there was not enough information to make an assessment. And so they wanted to remand it to get more information about an equal protection argument. And they said they accused the majority of sort of pulling in facts that did not exist in the record and ruling on equal protection without an adequate record basically. So that's where we ended up.
Liz Cavell:
And honestly, I do think it's fair based on oral arguments in the record to conclude that pulling this up and making a holding on the actual merits of the constitutional claim was premature because you'd have to decide whether or not trans status is a protected class or whether or not sex as a protected class would be the relevant class in this case. And then what's the level of scrutiny that the court should decide the claim on? And then based on that level of scrutiny, does the state have a compelling enough interest to justify the ban? And so it's like all that analysis requires factual presentation. And I don't think any of that was really developed below.
Alison Gill:
The factual questions I think revolve around are these athletes who are trans girls, so they're assigned male at birth, but have never gone through a male puberty, whether they are similarly situated to girls who are born female basically. So cis girls. So whether those two classes are similarly situated. And if so, then equal protections apply. And so it's a very fact intense question, which is why the liberal justices thought that it should have more development.
Rebecca Markert:
Justice Thomas had a pretty awful two page concurrence where he basically said that sex is a binary trait and it's only two pages long. It's just a couple of paragraphs where he's just like transgender status is not a suspect class like Alison just mentioned, but then also these women are not women even if they think that they are.
Liz Cavell:
He just copied and pasted that right out of his pen tweets. And so it was really easy.
Rebecca Markert:
Yeah. Yeah. Pretty awful. Justice Gorsuch also put together a concurrence. He says that the ruling is consistent with Bostock.
Liz Cavell:
He wrote separately to basically insist that he's not a hypocrite for his decision in Bostock. He wants everyone to know that there's nothing in Title IX that tells schools that they are prohibited from restricting sports to biological females. And that doesn't in any way contradict what he said in Bostock, which had to do with also Title IX classification on the basis of sex. And that was the only reason for his concurrence. Just I'm not a hypocrite. That was my read.
Rebecca Markert:
Right, right. He basically was talking about the phrase because of does not require the biological sex to be the only cause animating discrimination. It feels like he's trying really hard to make it make sense. Again, another hypocritical moment for the court.
Alison Gill:
I read this, the decisions and the concurrences and the dissents were all about sort of the next case. And the next case is like when the Trump administration, for example, challenges California for having inclusive laws under Title IX under the constitution that basically do treat trans girls fairly for athletics and let them play with other students. So I see like the Trump administration has been going down that road for a long time. They're making a lot of threats. They're sort of trying to cut off funding. So that case will definitely happen. And I saw this going in that direction. And then we had the conversation with Shiwali, my colleague, about these cases a few months ago. We talked about how during oral arguments, they were sort of trying to make room for states that want to be more accepting and accommodating and not requiring them to sort of not do so, to sort of have like a one size fits all rule.
And I think that's a lot of the writing is here trying to sort of frame that and make this sort of an allowance for states to go either direction. That's sort of what my takeaway was.
Liz Cavell:
Except Justice Thomas wants you to know he is not down with that.
Alison Gill:
Well, okay. I'm not down with Justice Thomas.
Liz Cavell:
Basically answering the idea, which is the next frontier that's happening now, which is like actually you're required under the law to ban trans girls and women from sports. We as the federal government or any authority can require that outcome. And so I think that's right. You can definitely see that. You definitely could hear that in the oral argument back and forth. And you can see that I think across the opinions in these cases. Another awesome celebration from the Supreme Court for to end Pride Month.
Alison Gill:
You know what though? We need a positive decision. How about Trump v. Barbara? They decided not to undermine based on the 14th Amendment birthright citizenship. So just a little palate cleanser before we keep going
Liz Cavell:
There. Oh yeah, it was only a squeaker.
Alison Gill:
Yes. Yes it was.
Liz Cavell:
It was a squeaker guys,
Alison Gill:
But –
Liz Cavell:
It's good news. Good news. Yeah, good news. A legal theory that nobody ever even —
Alison Gill:
Heard of five years ago.
Liz Cavell:
Even remotely possible based on the plain reading of the Constitution and everything we know about the 14th Amendment now has four votes on the United States Supreme Court.
Alison Gill:
Okay. Maybe three and a half, let's say, right? Because Kavanaugh's decision was a little bit both and.
Liz Cavell:
It was. There were a couple other things happening on the shadow docket that are worth mentioning. One –
Alison Gill:
What's the shadow docket, Liz?
Liz Cavell:
Don't worry about it. It's in the shadows. Don't worry. It's the so-called emergency docket that the current, the Roberts Court has just absolutely exploded to being one of the primary ways that they decide cases. And they're cases that the court disposes of. They make a decision that is often a decision on the merits, but they do it on the emergency docket, which means that it happens without any briefing, oral arguments or public hearing. And it's just these quick and dirty opinions that just kind of get –
Alison Gill:
Sometimes no opinions.
Liz Cavell:
Right, right. Even just decisions without opinion that just get buried and are totally just non-transparent. I mean, sometimes you don't know the breakdown. Again, sometimes you don't know the reasoning because they're issued without opinion or without much opinion. So one of those, one of the many –
Alison Gill:
Actually, speaking of that, they're one of the many. This was the first year apparently where they had more shadow docket decisions than they did have on their standard docket. Yep.
Rebecca Markert:
Really?
Alison Gill:
Yes, it was. And the standard docket, like I said at the beginning, has been decreasing over years and the shadow docket increasing. So it's just totally not transparent and by fiats in many cases. So the court isn't acting like a court. It's acting like a rubber stamp for Trump in these cases.
Liz Cavell:
Right. Because of course, as obvious from the description I just gave, you can do a lot more deciding when you don't have to listen to anyone's briefs, oral arguments, or take any time to consider or have a public and open hearing of the case. So one of the cases that was significant that came down on the shadow docket, Mirabelli, this was a case that involved California's policy that prevented public schools from notifying parents about a student's gender transition at school without the student's consent. Basically restricting teachers and school officials from outing trans students to their parents without the student's consent. Also restricting teachers from refusing to use preferred name and pronouns for students, which we have seen teachers do in other states.
Alison Gill:
Can I just say, real briefly, that is how the Supreme Court has characterized the law. If you actually read the law, it just says teachers cannot be held responsible. There's no consequences if they do not sort of disclose to parents.
Liz Cavell:
In other words, protecting teachers from parents.
Alison Gill:
Yes. When they want to protect students. Protecting teachers when they want to protect students basically. That's what the law does. The Supreme Court has characterized it just like you did, which is saying, well, it says they can't reveal stuff to parents. That's not what the law says. And if you look at the Mirabelli decision, they don't quote it. They don't cite it. This is another shadow docket thing. They're ruling on some imaginary law, frankly. I'm sorry, I'm jumping ahead because this one annoys me more than most. So please go ahead.
Liz Cavell:
Well, I mean, as you'd expect from Alison's description, the challenges were brought by parents and teachers under the free exercise and I guess due process claims to challenging the law, framing it in that way. The posture was that the district court, the trial level court issued a permanent injunction against the law. And the Ninth Circuit stayed that order. So stayed the injunction allowing the law to go into effect. And the decision by the court, six to three, the US Supreme Court, six to three, was basically allowing the permanent injunction to go back into effect, signaling that the parents are likely to succeed on their claims. So by putting their thumb on the scale of the case. One important thing is that the court here explicitly called out Mahmoud. If you remember the case that came down last year about LGBT positive books in public school curriculum and the fact that parents actually have a free exercise right to notice and an opportunity to opt their children out of being exposed to basically any reading material that features without negative comment a LGBTQ character.
The court here called out Mahmoud and basically signaled kind of an expansion of Mahmoud, which is to say that it's not just limited to curriculum. It can go to any school policy that, in their words, substantially interfere with the right of parents to guide the religious development of their children. That's how we used to talk about the establishment clause, but we'll save that for another day.
Alison Gill:
Nope. They replaced it.
Liz Cavell:
Yep. See what they did there?
Alison Gill:
With a worse rule. Again, a wrong framework. A wrong framework. Because this isn't even about, what's it called? Like a RFRA. They apply strict scrutiny. I think this automatically, the Smith framework automatically knocks us when this applies for this parental rights sort of framework, it automatically knocks us into strict scrutiny.
Rebecca Markert:
Well, I also want to point out that the dissent in this case was by Justice Kagan with Jackson. And she talked about how the court was sort of abusing the shadow docket to bypass some of the lower courts and decide these issues without full briefing. And it's even worse here because there was the emergency order that was issued in the Mirabelli case, but they were waiting for months on a similar case that they could have heard on the merits with the full briefing and argument. They just bypassed all of that in order to get to this decision.
So the impact obviously I think is going to be felt on the trans and non-binary kids who are already facing so many attacks on their healthcare and sports participation, their safety. Just all of this is just being piled on while they're at school. But then also this expansion of the parental rights doctrine that is really threatening so much of our public and secular education these days. It was one of those cases that, again, because it's on the shadow docket, didn't get a lot of press attention, I think, outside of the legal eagles, but is something that is going to have a pretty huge impact on how cases move forward.
Alison Gill:
Yeah. Absolutely. I think it has a really significant impact because as we're saying, if you can get into this parental rights sort of framework, you automatically get into strict scrutiny. So that gives religious parents an unprecedented amount of control over the school environment. And that includes what's taught. It includes actually, here we are, protections for teachers. I mean, you can imagine other things too. And so it's concerning how this will be applied by the sort of religious right legal firms.
Liz Cavell:
It's so important too, Rebecca, that you've flagged this is. There's several things going on and that one of them really is an attack on public schools. And just the ability of public schools to have deference to make pedagogical decisions. One other case, I guess Alison will force me to call this good news.
Alison Gill:
For now.
Liz Cavell:
For now. Once again, the freaking FDA mifepristone case found itself back up at the Supreme Court. So God, was it just last year? No, 2023.
Alison Gill:
The regulations around Mifepristone, which is one of the drugs used for medication abortions, were being challenged by groups that just sort of sprung up in the Northern District of Texas. Just where they were, Northern District of Texas. And they brought lawsuits there, just happened to get the most anti-reproductive rights judges in the country. And so that escalated and they didn't really care much about standing. Well, it got Supreme Court and they sort of knocked it back down, which is great. So okay, standing doesn't mean you can just sort of declare doctors have an interest in other people's patients not getting medication. Excellent. And so now we have this. After that, the states intervened, I think, and that's how we ended up in this situation. So the same case is now back at the Supreme Court. And I'll go ahead and take this one. The Supreme Court basically blocked the Fifth Circuit's attempt.
Fifth Circuit had a ruling that prevented mailed mifepristone. So basically there was Biden administration regulations that were implemented during the pandemic to make sure people still had access to mifepristone so they could be mailed. And the arguments against that from some states are, well, this is impacting us because we have laws against people using mifepristone and there's abortion restrictions and this allows them to be overcome. Basically for now, at least the Supreme Court has said that this overruled the Fifth Circuit. So it's still proceeding in the local district court in Texas, but for now at least this case is not sort of blown up and they haven't undermined people's access to Mifepristone nationwide.
Liz Cavell:
I think it's important to point out that there were dissents from this opinion.
Alison Gill:
Oh yeah. They were big mad. Yeah.
Rebecca Markert:
Who dissented?
Liz Cavell:
You're not going to believe this, but it was Thomas and Alito.
Rebecca Markert:
Oh, I'm shocked.
Liz Cavell:
They had thoughts. Justice Alito literally called the FDA's approval of Mifepristone for prescription by telemed and disbursement by mail, a criminal enterprise. Why? Because of the Comstock Act. I cannot stress how much this is the next frontier of trying to ban medication abortion nationwide. The Comstock Act, they are dead serious that this law is actually, because it's still on the books, it is enforceable and what the FDA is doing violates it and therefore they are engaged in a criminal enterprise according to Justice Alito.
Justice Thomas wrote separately, and I can't really remember the big thrust of his opinion other than our ruling in Dobbs. He doesn't like that medication abortion is making abortion more readily available because he though that he was going to help do away with abortion by deciding the way he did in Dobbs. And because people are still accessing abortion in states where abortion is banned, Justice Thomas is real mad.
Rebecca Markert:
He wrote, "What is at stake is the perpetration of a scheme to undermine our decision in Dobbs."
Alison Gill:
And it only makes sense if Dobbs were meant to affect a political outcome. If the goal in Dobbs was to reduce access to abortion.
Liz Cavell:
Otherwise – What does that even mean?
Alison Gill:
Yeah. They're not supposed to be trying to figure out if we want more abortion or less abortion in the country. That's not their job. Their job is to sort of rule on the laws that come before them and the cases that come before them.
Liz Cavell:
Well, he says Dobbs means leave it up to the states. And if states want to arrest the women that have abortions, don't you try to get in the way of that? That was what we tried to do.
Alison Gill:
Sure. And if other states want to ship medication over the place, don't get in the way of that. You know what I mean?
Liz Cavell:
Totally. But you're undermining his decision in Dobbs. No, you're totally right. Literally, how else can you understand that sentence and that dissent as like we're mad because we thought Dobbs would mean less abortions and now you're telling me mifepristone is widely available and actually abortions are increasing? It's madness. But important because the Comstock Act, it was dropped in the SCOTUS at the SCOTUS cert briefing phase, but Louisiana was pursuing Comstock Act arguments at every other stage of this litigation. And that is a part of the legal strategy to make it so that Mifepristone is against the law and by mail and by telemed, especially. There is no world where Dobbs was the culmination and now we're just going to leave it to the states. And you can see that in the briefing.
Alison Gill:
I feel like we could have a much bigger conversation around Mifepristone and Comstock and developments there. So maybe we should think about that for another episode.
Rebecca Markert:
I was just putting that in our episode ideas like Comstock Act 101. So that was a recap of all of the cases that we were following and analyzing over the last term of the Supreme Court. But of course they are not done. They've been accepting cases for the next term, which Liz had mentioned starts in October. And we know at least one religious liberty case is going to be on their docket when they return in the fall.
And that is a case out of, again, the state of Colorado, which established a universal pre-K program that provides public funding for families to pick a preschool. Participating schools, shockingly, have to comply with non-discrimination laws, including no discrimination against LGBTQ+ families. I'm being sarcastic. These are our typical requirements when you're taking money. This case is St. Mary's Catholic versus Roy. So in this case, two Catholic preschools and two parents say that the conditional funding requirements on anti-discrimination conflicts with their free exercise rights.
We've never heard that before.
Liz Cavell:
You don't say.
Rebecca Markert:
This case had gone up to the 10th circuit, which held that the law is not a violation of free exercise because it's neutral and generally applicable to all people no matter their religion. And it's rationally related to the state's interest in equal access to preschool for all families. So this is going to be before the Supreme Court. They've appealed and the Supreme Court has granted review. We are submitting an amicus brief at Americans United. I'm not sure if you guys are planning on doing that as well.
Alison Gill:
I think we are. I'm not 100% sure, but I believe we are.
Liz Cavell:
Yeah, I think we are too.
Alison Gill:
This is a pretty momentous case.
Liz Cavell:
And also the fact that SCOTUS is taking it is, as we often say, a bad sign because the outcome at the 10th Circuit is proper.
Rebecca Markert:
Right.
Alison Gill:
Yeah.
Rebecca Markert:
Right. And of course, a ruling by the Supreme Court in favor of the schools could substantially impact a state's ability to enforce non-discrimination mandates and really force states to rethink how to fund education.
Alison Gill:
This is a kind of a tricky case because their program is pretty complicated. I was looking into it and it has a lot of exceptions and subparts and people are allowed to add their own criteria in some places. And I'm worried we're going to end up with a pretty difficult to sort of parse case. But this is where we've been heading for years with this case, right? They've been trying to say, well, religious organizations must be included as part of government funding for years. And they've also been fighting back against being required to include, adhere to non-discrimination principles and basically for religious exemptions. Well, this is where those two things meet, right? This is exactly where. Basically it doesn't say here that religious groups are excluded. It just says you have to adhere to non-discrimination principles. And so the question is, does that mean that the religious groups are able to ignore those principles and still get the money?
Right. And so sort of everything's coming to a head with this. And if so, then we're going to see a large number of these, unfortunately, across the country in other areas, but it's a pretty concerning case.
Rebecca Markert:
Those trends that you just identified were the theme of the first year of this podcast. Right.
Liz Cavell:
Carson v. Makin was our first episode.
Rebecca Markert:
Exactly.
Alison Gill:
Yes, that's a good point. And
Rebecca Markert:
I wonder if we were to go back –
Alison Gill:
Tracking the fall of American civilization, that should be the podcast name.
Rebecca Markert:
But I wonder if we go back to those old episodes like four or five years ago now, if we –
Liz Cavell:
Sound naive?
Rebecca Markert:
Not sound naive, but if we predicted that this would come and come so ugly.
Alison Gill:
Oh, I'm sure we did. Oh yeah.
Liz Cavell:
I mean, this is the thing. Even back when we were talking about Carson v. Makin, which was supposedly only about access to the program. So if you layer it over the preschool case, it would be just the preschools just want to be able to participate in the 4K or in the universal pre-K program and not be excluded because of their religious character or their sectarian nature. But of course we knew because they were complaining and not in that case, not in Carson v. Makin, because it was one step at a time, but they were already, like the second that case was over, they were running back into court to file the next case to be able to, okay, now that the court ha said we have a constitutional right to participate in these programs, we want to now say it violates our rights to make us participate on equal terms.
I mean, it's always been a have your cake and eat it too strategy even from day one. And so it's no surprise. The only difference is they've got the court that they need to enforce the agenda.
Rebecca Markert:
And I'm not sure that we have an oral argument date for that, but does anybody know?
Liz Cavell:
No, I don't think it's set
Alison Gill:
Yet. I don't
Liz Cavell:
Think so yet. We will definitely cover it.
Rebecca Markert:
Yes. So we will be covering this case in full once they have the oral arguments in the next term. But as for now, that is where we are with the Supreme Court. So that's really it for today's episode.
Before we close though, I do want to shout out American United's amazing summer law clerk, Dana Craig. She is a law student at the University of Michigan. She's been instrumental in helping us produce this particular episode. So if we sounded really smart today, it's probably because of her prep work for us. So thank you, Dana. So that's it for today's episode. I'm Rebecca Markert.
Alison Gill:
I'm Alison Gill.
Liz Cavell:
And I'm Liz Cavell. If you haven't already, please follow us on our socials, Facebook, Instagram, Blue Sky, and X. Please also remember to let us know how you're liking the show by leaving us a review. This is the best way to help new listeners find the show. You can also find us at we-dissent.org. Thanks for listening.
Rebecca Markert:
We Dissent is a joint production of the Freedom From Religion Foundation, the National Women's Law Center, and Americans United for Separation of Church and State. It is hosted by attorneys Liz Cavell, Alison Gill, and me, Rebecca Markert. Other production support comes from Greta Martens. Audio engineering is provided by Audio for the Arts based in Madison, Wisconsin. Thanks for listening.
