With the sudden passing last weekend of Justice Antonin Scalia, the Supreme Court is now split 4-4 between liberals and conservatives, throwing into doubt how the court will rule on a raft of cases — including several watched by Jewish organizations.
• Zubik v. Burwell: In 2013, the Obama administration allowed faith-based employers to work around the contraceptive coverage mandate in the Affordable Care Act, or Obamacare. Under the system, religious nonprofits could refer employees to outside insurance agencies for such coverage.
A number of religious organizations have since argued that the mere fact of filling in a government form that would allow employees to get contraceptive coverage elsewhere violates their rights.
Zubik v. Burwell consolidates seven challenges to the mandate. Before Scalia’s death, a 5-4 conservative majority seemed the likeliest outcome. A split decision would allow the seven lower court decisions to stand. The Anti-Defamation League has filed an amicus, or friend-of-the-court, brief on the government’s side; the Orthodox Union has joined an amicus brief backing the plaintiffs.
• Trinity Lutheran v. Pauley: This is the latest case to test the “Blaine Amendment” laws passed in 37 of 50 states banning their governments from funding religious institutions.
Liberals tout the laws as necessary protections against religious encroachment on public life. Conservatives note that the laws were passed largely owing to anti-Catholic bigotry in the 19th century, to keep funding from parochial schools.
In this case, a Missouri Blaine Amendment is keeping a church from benefiting from a state program that recycles tires to repave playgrounds, making them safer.
On paper, it looks like a 4-4 split, which would keep the church from accessing the program, as lower courts have ruled for the state. The ADL has filed an amicus brief on behalf of the state. The OU and the American Jewish Committee support the church.
• Fisher v. University of Texas: The Supreme Court in 2013 sent this case back to the appellate court, saying the lower court’s decision did not adequately take into account the high bar for allowing affirmative action set by earlier Supreme Court decisions. The appellate court came up with the same ruling: The university’s affirmative action program is legal.
The program works this way: The top 10 percent of any graduating high school class in Texas is automatically admitted to the university, making up 75 percent of a freshman class. The remaining 25 percent are admitted through what the university calls a “holistic” system that counts race.
Abigail Fisher, the plaintiff, a white student who was not in the top 10 percent of her graduating class, says she suffered discrimination because of her race.
The ADL, the AJC and a number of Reform groups have filed amicus briefs backing the university’s position, consistent with the position long held by Jewish groups opposing race-based quotas but favoring broad-based programs that advance diversity.
Justice Elena Kagan recused herself; as Obama’s solicitor general in 2012, she filed an amicus brief favoring the university when the case was in a lower court.
Without Kagan, when Scalia was alive, the university appeared headed for a 5-3 defeat. The court’s conservatives have long seemed to be itching to strike a blow against affirmative action.
• U.S. v. Texas: Texas led 26 states last year in filing lawsuits challenging the Obama administration’s plans to add parents to a 2012 program that indefinitely defers the deportation of illegal immigrants who arrived in the United States as children.
Federal courts, heeding Texas and the other states, have put a hold on the program, which would apply to about 5 million undocumented immigrants. The Obama administration has asked the Supreme Court to consider whether the states have standing to bring the suit.
The Anti-Defamation League and the National Council of Jewish Women have joined an amicus brief defending the Obama administration’s prerogative in this case, and the AJC plans to as well.
• Whole Woman’s Health v. Hellerstedt: A federal appeals court has upheld a Texas law mandating regulations on abortion clinics that reproductive rights advocates say are onerous and aimed primarily at shutting down abortion access.
An array of Jewish groups, including the Reform movement, the NCJW and the ADL, have joined amicus briefs backing abortion providers.
Reproductive rights advocacy groups, before Scalia’s death, said the case could be as consequential as Roe v. Wade, the landmark 1973 ruling that expanded a woman’s right to an abortion.
The NCJW had asked members to rally in Washington, D.C., on March 2, when oral arguments are scheduled.