The Supreme Court considers the viewpoints of gender and “conversion therapy”.
RELIST WATCH
on February 27, 2025
at 10:00 pm
The Relist Watch columns examines cert petitions which the Supreme Court “relisted” in preparation for its upcoming conference. Here is a short explanation of relists.
After some stagnation on the relisting front, the Supreme Court finally took action last week, and on Monday denied review of nine cases which had been relisted three to seven times each. The fact that a case was relisted so many times indicates that some justices were strongly opposed to the issue. And sure enough, the justices filed opinions dissenting from the denial of certiorari, or at least an opinion respecting the denial of certiorari, addressing seven of the nine cases.
Most notable of all were the denials in Turco v. City of Englewood, New Jersey, and Coalition Life v. City of Carbondale, Illinois, both of which involved challenges to those cities’ laws establishing protest “buffer zones” around abortion clinics and asking the Supreme Court to overrule Hill v. Colorado, its 25-year-old decision holding that such zones are constitutionally permissible.
Justice Clarence Thomas dissented from the decision not to take up the Illinois case, noting that members of the court had called Hill “an ‘absurd,’ ‘defunct,’ ‘erroneous,’ and ‘long-discredited’ ‘aberration’ from the rest of our First Amendment jurisprudence.” Because lower courts continue to feel bound by it, he contended, the Supreme Court should make its defunct status official.
There are 106 petitions and applications scheduled for Friday’s conference, six of which were relisted for the first time this week. Five of the six relisted cases are brought by issue advocacy groups. It’s also a big week in terms of First Amendment claims. Four (really five) out of six relisted cases raise them. It was a big week for challenges against the regulation of professionals. Half of the relisted case addresses such issues. The Institute for Justice filed two petitions, 360 Virtual Drone Services LLC, v. Ritter, and Crownholm, v. Moore. Both petitions deal with state surveying laws. Many states require that people who are paid for certain types of mapping have a license from the state board of surveyors. IJ challenged these laws, arguing making such maps conveys important information (usually in connection with construction), and therefore constitutes speech protected under the First Amendment. The U.S. Courts of Appeals of the 4th Circuit and the 9th Circuit rejected IJ’s argument. The 4th Circuit ruled that such laws “are a regulation of professional behavior that only incidentally impacts expression,” and that precedent requires that we use a more relaxed intermediate scrutiny standard that mandates that the restriction must be “sufficiently drawn” to protect IJ now seeks Supreme Court review, arguing that more searching scrutiny is warranted. IJ now seeks Supreme Court review, arguing that more searching scrutiny is warranted.
Our next two relisted petitions were brought by the conservative legal nonprofit Alliance Defending Freedom, which last term represented doctors and medical groups seeking to roll back access to one of the two drugs used in medication abortions. It frequently represents people whose views put them in conflict with (usually state and local) laws requiring the recognition of same-sex marriage or that require people to act or speak inconsistently with their own views of sexual orientation or identity – such as a Colorado website designer who did not want to design websites for same-sex weddings.
Chiles v. Salazar involves a challenge to Colorado’s Minor Conversion Therapy Law, which prohibits mental health professionals from providing clients under the age of 18 with “conversion therapy,” the attempt to “convert” LGBTQ+ youth to heterosexuality or traditional gender identity.
Kaley Chiles, a licensed professional counselor, brought a federal civil rights challenge to the law, arguing that it violates both the free speech and free exercise clauses of the First Amendment because it interferes with her ability to communicate with her clients. Chiles requested a preliminary order to prevent the state from enforcing this law against her. The district court denied the request and the U.S. Court of Appeals 10th Circuit affirmed the ruling, saying that Chiles had failed to The court has relisted cases of this nature before, but they have never been able to get the votes necessary for a grant. L.M. L.M. L.M. protested by wearing a tee shirt that had a taped-on lettered message over the words “only two”. L.M. L.M. claims that other students were allowed to express their views about gender when it was more acceptable to the school. The district court granted summary judgment to the town, and the U.S. Court of Appeals 1st Circuit affirmed. In a lengthy opinion, it held that under the landmark Supreme Court decision in Tinker V. Des Moines Independent School District, the school was allowed to prohibit the shirts based on its judgment of what would constitute “an environment conducive for learning.” v. Town of Middleborough, Massachusetts, L.M., also represented by ADF, seeks review, arguing that the school district presumed without evidence that L.M.’s shirts would be substantially disruptive and that the speech should be permitted because it was silent, passive, and untargeted, and responded to the school’s opposing views and policies.
Hittle v. City of Stockton, California, is an employment-law case, but one with pronounced implications for the free exercise clause of the First Amendment. Stockton, Calif. fired Fire Department chief Ronald Hittle following disciplinary proceedings. The city received anonymous complaints alleging that Hittle was “religious” and showed favoritism towards co-religionists. Hittle sued the city and various officials after his termination, claiming that his termination constituted unlawful employment discrimination under Title VII based on his religion, in part because he had attended a Christian leadership event after he was told to seek leadership training Hittle sued the city, claiming that the termination was unlawful employment discrimination based on religion. This was in part because he attended a Christian Leadership Event after being told to seek training. According to this framework, the plaintiff must first prove that he is a protected group member, (2) that he was qualified for the position, (3) that he suffered an adverse employment decision, and (4) that similarly situated individuals outside of his protected class received The burden of proof then shifts from the plaintiff to the defendant, who must articulate a legitimate non-discriminatory explanation for the challenged actions. The plaintiff must then show that the employer’s non-discriminatory explanation is a pretext. It concluded that various remarks made by decisionmakers did not reflect discrimination. It concluded that various remarks made by decisionmakers did not reflect discrimination.
The full court of appeals then declined to rehear the case, over the votes of four judges who argued that the “record includes ample direct and circumstantial evidence of
discriminatory intent, which the panel should have recognized as more than sufficient to meet Hittle’s burden at the summary judgment stage.”
Hittle now seeks review. Hittle, in addition to a distinguished outside counsel, is represented by both the Church State Council which works to protect religious freedom, especially at the workplace, and the First Liberty Institute, a religious liberty group. They claim that the McDonnell Douglas framework denies plaintiffs with meritorious claims of discrimination their day in court. Hittle argues, in particular, that lower courts are confused about the third step of the process, where the plaintiff must show the reason given is a pretext. The test is especially inappropriate, Hittle argues, in cases brought under the theory that the protected status is a motivating factor for termination, where discrimination doesn’t need to be a but-for cause to be actionable.
Last up is Barrett v. United States. Dwayne Barras was a member a criminal group known as “the Crew”, which committed armed robberies, mostly against small businesses. Barrett was convicted for Hobbs Act Robbery. This is the illegal taking of property through force, violence or intimidation that affects interstate and foreign commerce. He was also found guilty of violating 18 U.S.C. SS 924(c), prohibiting the use of a firearm in connection with a crime of violent crime or drug trafficking, and 18 U.S.C. Barrett was convicted and his conviction and sentence were affirmed by the U.S. Court of Appeals for the 2d Circuit. Barrett was convicted and his conviction and sentence were affirmed by the U.S. Court of Appeals for the 2d Circuit.
Barrett seeks review, arguing that the double jeopardy clause prohibits imposing sentences on both a Section 924(c) conviction and a Section 924(j) conviction, when the offenses are based on the same underlying Hobbs Act robbery. He also argues Hobbs Act Robbery isn’t a crime under Section 924(c), because it doesn’t have as an element, the use, attempted usage, or threatened threat of use of physical force on the person or property another. We should know more soon.[s]New Relists
Crownholm v. Moore, 24-276[censored]Issues:
(1) What standard applies to determine whether an occupational-licensing law’s restriction on a person’s use, creation, and dissemination of information in drawings is a regulation of his speech or conduct that incidentally involves his speech; and (2) what level constitutional scrutiny applies to speech regulated by an occupational-licens We should know more soon.
New Relists
Crownholm v. Moore, 24-276
Issues:
(1) What standard applies to determine whether an occupational-licensing law’s restriction on a person’s use, creation, and dissemination of information in drawings is a regulation of his speech or of his conduct that incidentally involves his speech; and (2) what level of constitutional scrutiny applies to speech regulated by an occupational-licensing law.
(Relisted after the Feb. 21 conference. )[the decisionmakers’]360 Virtual Drone Services LLC v. Ritter, 24-279
Issue:
Whether, in an as-applied First Amendment challenge to an occupational-licensing law, the standard for determining whether the law regulates speech or regulates conduct is this court’s traditional conduct-versus-speech dichotomy.
(Relisted after the Feb. 21 conference.)
L.M. v. Town of Middleborough, Massachusetts, 24-410
Issue
: Whether school officials may presume substantial disruption or a violation of the rights of others from a student’s silent, passive, and untargeted ideological speech simply because that speech relates to matters of personal identity, even when the speech responds to the school’s opposing views, actions, or policies.
(Relisted after the Feb. 21 conference. )Hittle v. City of Stockton, California, 24-427
Issues
: (1) Whether this court should overrule McDonnell Douglas Corp. v. Green; and (2) whether step three of the McDonnell Douglas burden-shifting framework requires a plaintiff to disprove the employer’s proffered reason for the adverse employment action, when the text of Title VII of the Civil Rights Act of 1964 and Bostock v. Clayton County provide that an action may have more than one but-for cause or motivating factor.
(Relisted after the Feb. 21 conference. )Chiles v. Salazar, 24-539
Issue
: Whether a law that censors certain conversations between counselors and their clients based on the viewpoints expressed regulates conduct or violates the free speech clause of the First Amendment.
(Relisted after the Feb. 21 conference. )Barrett v. United States, 24-5774
Issues:
(1) Whether the double jeopardy clause of the Fifth Amendment permits two sentences for an act that violates 18 U.S.C. SS 924(c) and (j); and (2) whether “Hobbs Act robbery qualifies as a crime of violence under Section 924(c)(3)(A), a question left open after” United States v. Taylor.
(Relisted after the Feb. 21 conference. )Returning Relists
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, Dec. 13, Jan. 10, Jan. 17, Jan. 24, and Feb. 21 conferences. )
Ocean State Tactical, LLC v. Rhode Island, 24-131
Issues:
(1) Whether a retrospective and confiscatory ban on the possession of ammunition-feeding devices that are in common use violates the Second Amendment; and (2) whether a law dispossessing citizens without compensation of property that they lawfully acquired and long possessed without incident violates the takings clause of the Fifth Amendment.(Relisted after the Jan. 10, Jan. 17, Jan. 24, and Feb. 21 conferences. )
Snope v. Brown, 24-203
Issue:
Whether the Constitution permits Maryland to ban semiautomatic rifles that are in common use for lawful purposes, including the most popular rifle in America.
(Relisted after the Jan. 10, Jan. 17, Jan. 24, and Feb. 21 conferences. )Franklin v. New York, 24-330
Issues
: (1) Whether the Sixth Amendment’s confrontation clause applies to out-of-court statements admitted as evidence against criminal defendants if, and only if, the statements were created for the primary purpose of serving as trial testimony; and (2) whether a post-arrest report prepared about a criminal defendant by an agent of the state for use in a criminal proceeding can be admitted as evidence against the defendant at trial, without providing a right to cross-examine the report’s author.
(Relisted after the Jan. 10, Jan. 17, Jan. 24, and Feb. 21 conferences. )Speech First, Inc. v. Whitten, 24-361
Issue:
Whether university bias-response teams — official entities that solicit anonymous reports of bias, track them, investigate them, ask to meet with the perpetrators, and threaten to refer students for formal discipline — objectively chill students’ speech under the First Amendment.
(Relisted after the Jan. 10, Jan. 17, Jan. 24, and Feb. 21 conferences. )Alabama v. California, 22O158
Issue
: Whether the Supreme Court should enjoin states from seeking to impose liability or obtain equitable relief premised on either emissions by or in other states, or the promotion, use and/or sale of traditional energy products in or to those other states. CVSG: 12/10/2024
(Relisted after the Jan. 17, Jan. 24, and Feb. 21 conferences. )
