Supreme Court justices are meeting behind closed doors on Friday to discuss several cases on high-profile issues including religious freedom and a same-sex wedding flower arrangement, assault weapons limits, access to contraceptives, and so-called “faithless electors” in presidential elections.
Friday’s conference is the first scheduled time the nine justices will meet face-to-face in 2020 to conduct business.
It comes ahead of what will be a momentous Supreme Court session in the midst of the presidential election. Already, justices are poised to rule on the future of hundreds of thousands of undocumented immigrants who came to the US as children. And they’ll hear cases in March on President Donald Trump’s efforts to block the release of his financial information to congressional and New York investigators.
The court will likely announce as soon as Monday which cases it will and won’t consider.
Here are some of the top cases on Friday’s list:
Arlene’s Flowers and same-sex wedding
Justice will again consider whether to hear the case of a Washington state florist who declined to make an arrangement for the wedding of a same-sex couple, a move that could eventually result in a broader ruling on religious freedom.
Last June, the Washington state Supreme Court ruled against Arlene’s Flowers and its owner, Barronelle Stutzman, who refused in 2013 to make a floral arrangement for client Robert Ingersoll’s same-sex wedding, citing religious views that are at odds with the wedding.
That decision came after the US Supreme Court on appeal sent the case back down to the state in 2018 to be considered in light of its Masterpiece Cakeshop ruling, in which a 7-2 court sided that same year with a Colorado baker who declined to make a cake for a same-sex couple in a ruling carefully tailored to the case at hand.
“Absent this Court’s review, government officials will keep dragging ‘reasonable and sincere people’ of faith like Barronelle through the courts … imposing ruinous judgments, and barring them from their professions simply because they hold disfavored views about marriage,” Stutzman’s lawyers wrote to the high court last September.
“Only this Court can resolve the numerous First Amendment conflicts these issues have created … and set precedent that will protect people across the political spectrum in present and future cultural debates.”
CNN Supreme Court analyst Steve Vladeck said this week that the case could give the court an opportunity to issue an opinion on the broader issues it “dodged” two years ago in Masterpiece Cakeshop.
“In its narrow holding, the justices dodged a broader decision about when the religious beliefs of the owners of a secular business require an exemption from local and state anti-discrimination laws, such as laws banning discrimination on the basis of sexual orientation,” said Vladeck, a professor at the University of Texas School of Law.
“But this case is one of many in the pipeline asking the Court to take up and resolve that issue — especially now that Justice (Brett) Kavanaugh has replaced Justice (Anthony) Kennedy, which may portend a majority that’s more inclined to side with the business owners in these disputes,” Vladeck added.
Washington Attorney General Bob Ferguson, who is representing the state in the case, told CNN the issue is “well settled in courts all across our country at every level.”
“You cannot violate a civil rights statue under the guise of religious liberty,” he said in an interview. “The Supreme Court could take it if they want to, but it’s not like there’s some big dispute going on out there.”
Kristen Waggoner, an attorney with Alliance Defending Freedom, the group representing Stutzman, said the court “has an opportunity to resolve many important legal issues left unanswered” following Masterpiece Cakeshop.
“A denial will finalize a flawed Washington court ruling that strips away Americans’ right to live and work according to our deepest beliefs,” she told CNN. “That hurts Americans no matter their religious beliefs.”
Three presidential electors in Washington state who voted for Colin Powell in 2016 rather than Hillary Clinton and were fined under state law want the US Supreme Court to take up their appeal and decide whether a state can bind an elector to vote for the state’s popular vote winner.
“The issue is undeniably important: presidential elections in the Electoral College will be increasingly close, and could literally turn upon whether electors have a constitutionally protected discretion,” Lawrence Lessig, a lawyer for the so-called “faithless electors,” told the justices in court papers.
Overall, 10 of the 538 presidential electors in 2016 voted or attempted to vote for someone other than their pledged candidate, Lessig noted.
In May, the Washington state Supreme Court held that the state could regulate the vote of an elector either directly or indirectly. But in August, a federal appeals court ruled that a similar Colorado law was unconstitutional.
“There is nothing in the federal Constitution” that allows a state to remove an elector or nullify his vote, a three-judge panel of the 10th US Circuit Court of Appeals held. “The states may not interfere with the electors’ exercise of discretion in voting for the President and Vice President.”
Most states currently require some kind of a pledge from an elector to vote for the party’s candidate.
The Washington state challenge is brought by Peter Bret Chiafalo, Levi Jennet Guerra and Esther Virginia John, who were nominated as presidential electors for the Washington Democratic Party for the 2016 election. Hillary Clinton and Tim Kaine received the most popular votes in the state for president and vice president, respectively.
The three electors voted for Powell for president. For vice president, Guerra voted for Washington Democratic Sen. Maria Cantwell, John voted for Maine Republican Sen. Susan Collins and Chiafalo voted for Massachusetts Democratic Sen. Elizabeth Warren.
Little Sisters of the Poor back at the Court
The court could also consider case involving the Little Sisters of the Poor, a Roman Catholic religious order for women, petitioning the court to affirm religious exemptions under the Affordable Care Act’s long controversial requirement that employer-provided health insurance plans cover birth control as a preventive service.
The petition asks the court to consider whether the group can bring the case, as well as the broader question of whether the federal government can legally provide religious exemptions to the contraceptive mandate. It cites the Religious Freedom Restoration Act of 1993, which was designed to prohibit the federal government from “substantially burdening” a person’s exercise of religion.
The petition continues a long-standing battle between the nuns — bolstered by friendly policies from the Trump administration — and proponents of the contraceptive mandate previously in the federal government and now in the states.
The Little Sisters challenged the mandate before the court in March 2016, seeking an exemption similar to what has been provided to houses of worship such as churches. Although the Obama administration offered them an accommodation meant to respect their religious objections, they and other groups said it was not good enough because it would still make them complicit in providing the coverage.
The court later issued an order asking both sides to consider an alternative and address the question of whether “contraceptive coverage could be provided to petitioners employees, through petitioner’s insurance companies, without any such notice from petitioners.” Both the Obama administration and religious groups, including the Little Sisters, said they were open to a compromise, and that May, the court issued a unanimous ruling not to decide the case on the merits, but instead sent the case back down to the lower courts for opposing parties to work out.
But the landscape has changed under the Trump administration, which issued two final rules in 2018, including providing an exemption from the contraceptive coverage mandate to entities that object to such coverage based on religious beliefs. In January, Pennsylvania and California went to court to challenge the new rules, with federal judges in both states then halting them from going into effect.
After the Third US Circuit Court of Appeals affirmed the federal level ruling against the Little Sisters in July, the nuns are now looking for the Supreme Court to affirm their exception.
The Third Circuit’s “decision and the resulting patch-work of injunctions and counter-injunctions cries out for this Court’s review,” the petition reads. “Religious liberty is too important for it to be accommodated only as a last resort.”
Mark Rienzi, a lawyer representing the Little Sisters, told CNN that the justices have “made it pretty clear that they do think this is a big, substantive, important thing to get resolved.”
“The shocking thing here is that the parties did come to a deal (in 2016), and yet now states are suing, saying that the federal government can’t give this exemption,” Rienzi said.
“If they don’t take it now, it’s just going to fester and continue, and I don’t think that’s in anybody interest or the court’s interest,” he continued, adding that he thought all nine justices would look favorably on the petition “because they all take the First Amendment and religious liberties seriously.”
Jacklin Rhoads, a spokesperson for the Office of the Pennsylvania Attorney General, told CNN in a statement that “two federal courts have blocked the Trump Administration’s rules because they would allow virtually any employer to deny women access to contraception for any reason—including the belief that women should not be in the workforce.”
“Both courts made clear that their rulings will have no impact on the Little Sisters of the Poor, who have a separate court-ordered injunction exempting them from the contraceptive mandate,” she added. “Any suggestion to the contrary is false and we have no reason to believe the Supreme Court will rule differently.”
The court has opted to turn down the Little Sisters before. In June, the court declined to take up a case brought by the Little Sisters challenging lower court opinions that blocked the administration’s efforts to weaken the mandate.
Iran terrorism judgment lawsuit
In the final days of 2018, Congress once again sided with the families of US Marines killed in the 1983 Beirut bombings, passing a bill that made explicit that courts were permitted to seize assets outside of the United States.
Shortly after Trump signed the National Defense Authorization Act into law on December 20, the Justice Department filed a petition asking the Supreme Court to erase a decision made by the Second US Circuit Court of Appeals, effectively stripping the precedent from the books so that other future cases would be unable to rely on it to seize assets outside the United States.
“It now would be appropriate to grant the certiorari petitions, vacate the judgment below, and remand to the court of appeals for further consideration in light of the NDAA,” Solicitor General Noel Francisco wrote.
The families of Marines killed in the attacks — for which the US has faulted Iran — have spent more than a decade trying to collect a judgment they won against Iran in 2007. But seizing the assets to fulfill the judgment has been difficult.
In the middle of the bond dispute is Clearstream Banking, a Luxembourg-based clearinghouse that has served as an intermediary for sovereign bonds held by Bank Markazi, Iran’s central bank, with offices in New York.
The US government — in particular the State Department — has a long history of resisting the ability of civil litigants to seize money from sovereign governments, even those like Iran. But the law passed by Trump effectively makes clear that courts have the power to seize assets for judgments inside and outside of the United States.
In their rebuttal, the plaintiff’s attorneys argued that despite the change in the law by Congress late last year, it does not in any way impair the Second Circuit’s decision, and that the Supreme Court should deny the government’s petition.
“This Court should reject the new suggestion of the United States. The legislation does not in any way call into question the correctness of the decision below; instead, it provides an independent ground for affirming its judgment,” the attorneys wrote in a brief.
Ultimately, the court can make one of three decisions: 1) Dismiss the petition, 2) Deny the US government’s petition or 3) Send the case back to the lower court to erase the precedent.
‘Copycat’ assault weapons ban
The court is already faced with a major 2nd Amendment case concerning a New York gun law that regulates where licensed handgun owners can take a locked and unloaded handgun. In that case, the law has been changed since the justices agreed to hear the challenge, and they are now considering whether or not to render the case moot.
The new case it could take up concerns a Massachusetts provision that prohibits the sale and possession of assault weapons and large capacity feeding devices except by a law enforcement officer or law enforcement retiree who is “not otherwise prohibited from receiving such a weapon or feeding device from such agency upon retirement.”
Following a 2016 mass shooting in Orlando, Florida, state Attorney General Maura Healey issued a notice to gun manufacturers and retailers in the state that her office “is stepping up enforcement of the state’s assault weapons ban, including a crackdown on the sale of copycat weapons,” which are assault weapons with minor design differences. Despite being covered under the ban, 10,000 such weapons were sold in the state in 2015, her office said. In response to the notice, four gun owners, two retailers and a firearms advocacy group filed suit challenging Healey’s enforcement of the ban.
The challenge was rejected last year by a federal appeals court, which sided with a previous ruling that dismissed the lawsuit. “This case concerns an issue of paramount importance,” the appeals court wrote in its decision. “In the wake of increasingly frequent acts of mass violence committed with semiautomatic assault weapons and LCMs, the interests of state and local governments in regulating the possession and use of such weapons are entitled to great weight.”
But in their writ of certiorari asking the court to hear the case, lawyers for the petitioners wrote that the state’s “bans are inconsistent with the Second Amendment’s text, history, and tradition and must be overturned.”
The National Rifle Association argued the court should review the case, saying that its “intervention is imperative” because the state’s provision deprives citizens “of their constitutional right to keep and bear protected arms.”
In a brief submitted last year, Massachusetts urged the court not to agree to hear the case, touting the decision of the appeals court.
“Massachusetts has permissibly chosen to prohibit a narrowly defined group of weapons used disproportionally in (mass shootings), while at the same time ensuring that law-abiding residents have access to a host of other firearms for self-defense and other lawful activities,” the brief states.