In the Pipeline
An overview of possible Supreme Court cases in the coming term.


The first week of October each year brings the return of the U.S. Supreme Court to active duty, hearing and deciding cases. The upcoming term already features cases presenting the high-profile issues of partial birth abortion and racial preferences. Waiting in the wings, however, are a host of other formal requests for Supreme Court review. One of the first items on the Court’s agenda will be choosing which of these additional cases, if any, to accept.

Here are some of the cases and issues the Court could decide, in the next few weeks, to address:

Campaign Finance — Do advocacy groups have a free speech right to mention an elected official’s name when running issue advertisements, when the official is up for reelection? That’s the question posed by Christian Civic League of Maine v. Federal Election Commission. The Bipartisan Campaign Reform Act of 2002 (BCRA) restricts even mentioning the name of a federal candidate within 30 days of a primary or 60 days of a general election. That means a grassroots lobbying group could not air an ad saying, for example, “Urge Senator Hillary Clinton to support the Federal Marriage Amendment” within 60 days of when she is up for reelection.

School Choice — Can a state exclude otherwise eligible private schools from a school-choice program just because they are religious? That’s what Maine did, and parents are challenging the discrimination in Anderson v. Durham School Department. In Maine, school districts that don’t have a public high school will pay for parents to send their children to some other high school of their choice, public or private, except if it’s a religious high school. The parents claim that violates their constitutional right to the free exercise of religion.

Forced Union Support — In Washington state, a law protects non-union employees from being assessed — without their consent — for fees that a union then uses for political purposes. But the state supreme court held that unions have a First Amendment right to take the money even if the employee has not consented. According to the court, the Constitution requires that the burden of refusing the union permission for such expenditures be placed on the employee, and forbids placing the burden of obtaining permission on the union. The state attorney general (in Washington v. Washington Education Association) and the National Right to Work Legal Foundation (in Davenport v. Washington Education Association) are asking the Supreme Court to take the case.

Religion in Public Schools — Courts routinely strike down prayer and religious instruction in public schools. But apparently there’s an exception for Islam. The federal court of appeals for the Ninth Circuit saw no Establishment Clause violation where a California public school had students, over a three-week period, learn Muslim prayers, study Muslim doctrine, and take Muslim names. Can anyone imagine the same result if the students had become, say, “Catholic for a month” instead of “Muslim for a month”? In Eklund v. Byron Union School District, attorneys from the Thomas More Law Center ask the Supreme Court to hear their challenge to the Islam program.

Scouting and the Homosexual Agenda — The City of Berkeley, California, stripped the local Sea Scouts of their previously free use of a city marina because the Sea Scouts refused to renounce their association with the Boy Scouts. (The Boy Scouts do not allow open homosexuals as scoutmasters — something the Supreme Court has already ruled is the Boy Scouts’ right to do.) The city’s theory seems to be, “You may have a constitutional right to associate with the Boy Scouts, but we can punish you for it!” The California supreme court backed Berkeley, and now the Sea Scouts have petitioned the U.S. Supreme Court in Evans v. City of Berkeley.

Obscenity — A raft of petitions claim federal constitutional protection — or at least defenses – for such things as obscene devices (Acosta v. Texas), nude dancing (Heideman v. South Salt Lake City), indecent exposure on a cable TV show (Huffman v. Michigan), and Internet child pornography (Sorabella v. Connecticut and MacEwen v. United States).

Church Autonomy — Courts generally recognize a “ministerial exception” to employment discrimination laws. The idea is that courts should not be second-guessing a church’s decision regarding who shall deliver its messages, administer its sacraments, direct its liturgies, etc. In Tomic v. Catholic Diocese of Peoria, a former church organist, who unsuccessfully sued the church for age discrimination, wants the Supreme Court to reinstate his lawsuit. At stake is the freedom and autonomy of churches in ministry-related hiring and firing.

Taxpayer Standing / Church and State — The Freedom From Religion Foundation (FFRF) sued the federal government, bringing an Establishment Clause challenge to President Bush’s Faith-Based and Community Initiatives programs. In Grace v. Freedom From Religion Foundation, the Bush administration is asking the Supreme Court to decide whether FFRF has standing to sue just because its members pay federal taxes. The case could have a major impact on how easy it is for church / state separationists to challenge federal government actions they find objectionable.

Abortion — Last but not least, in Cano v. Baker, Sandra Cano — the former Mary Doe of Doe v. Bolton, the companion case to Roe v. Wade — is asking the Supreme Court to overturn her landmark abortion ruling. Cano says she never wanted an abortion and that her lawyers deceived her and used her.

The potential for a fascinating Supreme Court term is unquestionably in place.

– Walter Weber is senior litigation counsel with the American Center for Law and Justice.