Feres, sacred sites, religious tax exemptions and whether to reconsider Feres
RELIST WATCH
It has been a busy few days for the Supreme Court as it works through its backlog. The Supreme Court agreed to review two cases last Friday that involved the constitutionality of the statute allowing federal court to assert jurisdiction over the Palestine Liberation Organization (PLO) and the Palestinian Authority. And the court granted review in a third case that will finally address what constitutes a “second or successive” habeas petition restricted under the Antiterrorism and Effective Death Penalty Act.
The court also declined to take up a number of repeatedly relisted cases, in each case prompting opinions discussing the decision to deny and three dissents.
Parents Protecting Our Children, UA v. Eau Claire Area School District involved a school district’s guidance policy governing counseling transgender children. Justice Brett Kavanaugh stated that he would grant the petition. Justice Samuel Alito and Justice Clarence Thomas wrote in dissent, that the case raised a question of “great and growing national significance: whether a school district violates the fundamental constitutional right of parents to make decisions about the rearing of children.” Thomas, joined by Alito, wrote an opinion regarding the denial in which he argued that the Hawai’i regime “wrongly reduces the Second Amendment to a ‘second-class right,'” while at the same time agreeing that denial was warranted because of the case’s “interlocutory posture.” Justice Neil Gorsuch also filed an opinion regarding the denial in which he suggested that the Hawaii Supreme Court had not fairly grappled with the defendant’s Second Amendment defense to the possession conviction.
Lastly, the court denied review in Boston Parent Coalition for Academic Excellence Corp v. The School Committee for the City of Boston, involving an equal protection challenge to a facially race-neutral admission policy used by three elite Boston public schools in 2021. Gorsuch wrote that the challenged policy had been replaced, and the denial does not signify a support for the lower court’s decision upholding the policy. Alito and Thomas dissented from the denial of review, contending that the court of appeals had erred in its analysis and urging the court to “reject root and branch this dangerously distorted view of disparate impact.”
Transfer of sacred land
First up among the new relists this week is Apache Stronghold v. United States. Since centuries, the Western Apaches have centered their worship at a small area of federally-owned land in Arizona known as Chi’chil Bildagoteel or Oak Flat. Oak Flat is sacred to the Apaches, as it is their “corridor of the Creator” and where they hold certain sacred ceremonies. Oak Flat also contains a campground owned and operated by the Forest Service, which was cordoned off by Congress from private development in the 1950s. After the discovery of the world’s third-largest copper reserve beneath Oak Flat, government officials decided to transfer ownership of the site to Resolution Copper to allow them to build a mine. In 2014, Congress attached a rider to a major spending bill authorizing a land exchange between the U.S. Forest Service and the mining company.
Apache Stronghold, an advocacy group created by members of the San Carlos Apache Tribe, went to federal court in an effort to stop the transfer. The group argued the land exchange would destroy the sacred site, and therefore violate the tribe’s First Amendment rights to free exercise of religion. The group argued that the land exchange would violate the 1993 Religious Freedom Restoration Act which requires courts closely scrutinize federal acts that “substantially hinder” religious freedom. The court of appeals ruled that the First Amendment challenge had been preempted by Lyng V. Northwest Indian Cemetery Protective Association which allowed Congress to sell public lands that were holy to an indigenous tribe. Apache Stronghold is seeking to reverse the 9th Circuit decision. They argue that a “substantial burden” on religious practice under RFRA can include an action that effectively prohibits that practice. The group also argues that RFRA overrides a Supreme Court decision that was made in 1993 on public lands because it only applied to laws that were incidentally burdensome for religion. Congress removed this decision when enacting that law. The government and Resolution Mining urge the justices to leave the 9th Circuit’s ruling in place.
Restrictions on tax exemption
Wisconsin law exempts from its state unemployment tax system certain religious organizations that are “operated, supervised, controlled, or principally supported by a church or convention or association of churches” and that are also “operated primarily for religious purposes.” Catholic Charities Bureau, Inc. is a nonprofit corporation and the social ministry arm of the Catholic Diocese of Superior. Its mission is “
o carry on the redeeming work of our Lord by reflecting gospel values and the moral teaching of the church” by “providing services to the poor and disadvantaged as an expression of the social ministry of the Catholic Church.” The bishop of the diocese of Superior controls Catholic Charities.
Catholic Charities sought a determination from the Wisconsin Department of Workforce Development that it was exempt from state unemployment taxes. Various decisionmakers in the administrative review process ruled both for and against Catholic Charities, but the final decisionmaker (the state Labor and Industry Review Commission) concluded that Catholic Charities “provide
essentially secular services and engage
in activities that are not religious per se” and thus did not qualify for the exemption.
The Wisconsin Supreme Court ultimately upheld the denial of the exemption, holding that the statutory criteria focused on “typical” forms of religious exercise: whether the entity proselytized, whether it “participated in worship services, religious outreach, ceremony, or religious education.” It therefore concluded that Catholic Charities did not qualify because it did not “attempt to imbue program participants with the Catholic faith” and its services “are open to all participants regardless of religion.” And the court concluded that the statute, so construed, could constitutionally be applied against Catholic Charities.[]Several dissenting justices argued that the majority’s test put courts in the “constitutionally tenuous position of second-guessing the religious significance and character of a nonprofit’s actions.”
In Catholic Charities Bureau, Inc. v. Wisconsin Labor & Industry Review Commission, Catholic Charities argues that state courts of last resort are divided on whether the states may, consistent with the First Amendment’s free exercise and establishment clauses, deny church organizations a tax exemption because they do not engage in “typical” religious activities. To avoid infringement on religious observances, four state courts focus on the motivation of an organization’s actions. It argues that four other state supreme court (including Wisconsin’s), have held that state agencies may review the activities of religious organizations to determine if they are “typical” religion behavior without violating the constitution. Catholic Charities say that the latter test violates the First Amendment by favoring some religions over others, entangling courts in religious questions, and interfering with church autonomy.
Revisiting the Feres doctrine [t]The Federal Tort Claims Act waives U.S. sovereign immunity and authorizes tort actions against the federal government for the negligence of its employees, while expressly retaining immunity for “claim
arising out of the combatant activities of the military … during time of war.” The Supreme Court held in 1950’s Feres v. United States that the FTCA does not waive immunity for injuries that “arise out of or are in the course of activity incident” to a person’s military service. The so-called Feres Doctrine has been the focus of criticism by many justices for decades. Justice Clarence Thomas is the current leading critic of the Feres doctrine, saying the case was “wrongly decided and heartily deserves the widespread, almost universal criticism it has received” both for being atextual and for being unfair to military personnel.[]Ryan Carter was a member of the National Guard, a reserve component of the military, and he spent most of his time in civilian employment. Carter underwent surgery in a military hospital while not on active duty to treat a long-standing spinal condition. During the surgery, his spine was injured, and he was left largely paralyzed.[]When Carter sued, the district court dismissed his case, relying on the Feres doctrine. The U.S. Court of Appeals, 4th Circuit, affirmed this dismissal. Thomas has been trying to persuade his colleagues to revisit Feres for years. We’ll find out soon if he’s succeeded. Thomas has been trying for years to persuade his colleagues to revisit Feres; we’ll find out soon if he’s finally succeeded.
Tune in next time!
New Relists
Carter v. United States, 23-1281
Issues:
(1) Whether Feres v. United States should be limited not to bar tort claims brought by service members alleging medical malpractice who were under no military orders, not engaged in any military mission, and whose military status was retroactively altered from inactive to active duty post medical malpractice; and (2) whether the Feres doctrine conflicts with the plain language of the Federal Tort Claims Act and should thus be clarified, limited, or overruled.[s](Relisted after the Dec. 6 conference. )
Catholic Charities Bureau, Inc. v. Wisconsin Labor & Industry Review Commission, 24-154
Issues
: (1) Whether a state violates the First Amendment’s religion clauses by denying a religious organization an otherwise-available tax exemption because the organization does not meet the state’s criteria for religious behavior; and (2) whether, in addressing federal constitutional challenges, state courts may require proof of unconstitutionality “beyond a reasonable doubt.”
(Relisted after the Dec. 6 conference. )
Apache Stronghold v. United States, 24-291
Issue: Whether the government “substantially burdens” religious exercise under the Religious Freedom Restoration Act, or must satisfy heightened scrutiny under the free exercise clause of the First Amendment, when it singles out a sacred site for complete physical destruction, ending specific religious rituals forever.
(Relisted after the Dec. 6 conference. )
Returning Relists
Andrew v. White, 23-6573Issues
: (1) Whether clearly established federal law as determined by this court forbids the prosecution’s use of a woman’s plainly irrelevant sexual history, gender presentation, and role as a mother and wife to assess guilt and punishment; and (2) whether this court should summarily reverse in light of cumulative effect of the errors in this case at guilt and sentencing, including the introduction of a custodial statement made without the warnings required by Miranda v. Arizona.
(Rescheduled before the March 28, April 5, April 12, April 19, April 26, May 9, May 16, May 23, May 30, June 6, June 13, June 20, and July 1 conferences; relisted after the Sept. 30, Oct. 11, Oct. 18, Nov. 1, Nov. 8, Nov. 15, Nov. 22 and Dec. 6 conferences. )
Kerr v. Planned Parenthood South Atlantic, 23-1275
Issues
: (1) Whether the Medicaid Act’s any-qualified provider provision unambiguously confers a private right upon a Medicaid beneficiary to choose a specific provider; and (2) what the scope of a Medicaid beneficiary’s alleged right is to choose a provider that a state has deemed disqualified.
(Relisted after the Sept. 30, Oct. 11, Oct. 18, Nov. 1, Nov. 8, Nov. 15, Nov. 22 and Dec. 6 conferences. )
Diamond Alternative Energy LLC v. Environmental Protection Agency, 24-7Issues:
(1) Whether a party may establish the redressability component of Article III standing by relying on the coercive and predictable effects of regulation on third parties; and (2) whether EPA’s preemption waiver for California’s greenhouse-gas emission standards and zero emission-vehicle mandate is unlawful.
(Relisted after the Oct. 11, Oct. 18, Nov. 1, Nov. 8, Nov. 15, Nov. 22 and Dec. 6 conferences. )Ohio v. Environmental Protection Agency, 24-13
Issue: Whether Congress may pass a law under the commerce clause that empowers one state to exercise sovereign power that the law denies to all other states.
(Relisted after the Oct. 11, Oct. 18, Nov. 1, Nov. 8, Nov. 15, Nov. 22 and Dec. 6 conferences.)
Turco v. City of Englewood, New Jersey, 23-1189
Issues: (1) Whether the City of Englewood’s speech-free buffer zones, including zones outside an abortion clinic, violate the First Amendment; and (2) whether the court should overrule Hill v. Colorado.
(Relisted after the Nov. 15, Nov. 22 and Dec. 6 conferences. )
Coalition Life v. City of Carbondale, Illinois, 24-57
Issue: Whether this Court should overrule Hill v. Colorado.
(Relisted after the Nov. 15, Nov. 22 and Dec. 6 conferences. )
