New Supreme Court term doesn't include same-sex marriage – for now

With same-sex marriage looming on the horizon, the US Supreme Court opens its new term confronting cases involving dead fish, a beard, a headscarf, and angry Facebook entries.

The blockbuster case that will likely define the US Supreme Court’s 2014-2015 term isn’t even on the high court’s docket yet.

The justices have already agreed to hear 50 cases in the new term that begins Monday (Oct. 6) and runs through late June. But none of those cases approach the potential historic impact of a decision in the contentious national debate over same-sex marriage.

Virtually all experts agree that the Supreme Court is ready to confront the issue. Petitions for review have been filed from five states. And in an unusual move, even the lawyers who won in the lower courts are encouraging the Supreme Court to weigh in.

The justices are expected to consider the same-sex marriage cases at their next private conference on Friday, Oct. 10, and an announcement could come as early as later that day. But they may also wait a week, several weeks, or several months to decide precisely which case or cases to take up.

Other potential blockbuster cases on the horizon include a challenge to the provision of tax credits under Obamacare, disputes over state abortion restrictions, and a long-running battle over affirmative action at the University of Texas.

In the meantime, the court’s new term already features cases touching on a variety of legal areas including free speech, the separation of powers, freedom of religion, employment discrimination, and a quirky case of statutory interpretation exploring whether a dead fish is the same for legal purposes as a shredded document.

Cases this term are set to examine whether menacing words written on a Facebook page amount to a “true threat” in violation of federal law or are instead protected free speech, whether a Muslim man has a religious right to grow a beard in prison, whether a Muslim woman has a right to wear a headscarf while working as a sales clerk, and whether Congress can require the State Department to change its policy over how to record the disputed political status of Jerusalem in US passports.

The justices will also consider whether judicial candidates can be prohibited by a state bar association from personally soliciting campaign contributions, whether a special commission set up by lawmakers to draw new election districts in Arizona violates the Constitution’s Elections Clause, and whether a pregnant UPS driver is entitled to a light-duty assignment under the federal Pregnancy Discrimination Act even though the company’s collective bargaining agreement does not provide such an accommodation.

Here is a brief rundown of a few of the term’s top cases:

A HEADSCARF

EEOC v. Abercrombie & Fitch. A Muslim teen applies for a job working as a sales associate at the retail store Abercrombie Kids. The store maintains a strict dress code, including prohibitions on wearing caps and wearing black. The teen arrives for her job interview wearing a black headscarf. The interviewer assumes the teen is Muslim because of the headscarf, but she doesn’t ask about it and the issue of the headscarf is never discussed. The company decides not to hire the teen because they assumed she would wear a headscarf at work. The Equal Employment Opportunity Commission filed suit on the teen’s behalf, charging that Abercrombie should have hired the teen and provided an accommodation from the dress code. A jury set damages at $20,000. An appeals court reversed, ruling that the teen failed to explicitly tell the company that she wanted a religious accommodation. The Supreme Court is being asked to decide whether a company can be held liable for failing to offer a religious accommodation even if an accommodation was never explicitly requested by a job applicant.

A BEARD

Holt v. Hobbs.  A Muslim inmate in an Arkansas prison filed suit claiming a religious right to grow a beard. A federal statute, the Religious Land Use and Institutionalized Persons Act, prohibits prison officials from imposing a substantial burden on a prisoner’s religious exercise unless the burden is the least restrictive way to achieve a compelling government interest. Prison officials in Arkansas say their no-beard policy is imposed out of concern that weapons and contraband might be hidden in excessive facial hair. Lawyers for the inmate note that at least 40 other states and the federal prison system allow beards. The high court must decide whether to defer to the judgment of Arkansas prison officials or require the state to accommodate the inmate’s religious request.

FREE SPEECH AND FACEBOOK

Elonis v. United States. Anthony Elonis was in a long-running and ugly dispute with his ex-wife. During the course of this battle, Mr. Elonis used his Facebook page to post a number of menacing messages in the form of crude and violent rap lyrics. In one he advised his ex-wife: “Fold up your [protective order] and put it in your pocket. Is it thick enough to stop a bullet?” In another he noted that there were “enough elementary schools in a ten-mile radius to initiate the most heinous school shooting ever… the only question is which one.” After this conduct attracted the attention of the FBI, he warned an agent “the next time you knock, [I’ll] touch the detonator in my pocket and we’re all going boom.” Elonis was charged and convicted of violating a federal threat statute. He was sentenced to three years and eight months in prison. His lawyers are urging the high court to reverse his conviction on grounds that prosecutors didn’t prove enough at his trial to overcome free speech protections. They say a conviction requires more than merely showing that a reasonable person would consider Elonis’ Facebook statements threatening. They must also prove that Elonis intended to make actual threats. The government rejects this higher standard, arguing that causing fear in another is enough. The Supreme Court is being asked to clarify what must be proved to hold someone criminally responsible for something they said or wrote.

UPS AND THE PREGNANCY DISCRIMINATION ACT

Young v. United Parcel Service. Peggy Young worked as a driver for UPS. When she became pregnant, her doctor advised that she avoid lifting heavy objects. Her request for a light-duty assignment was denied. UPS said that under its collective bargaining agreement, light-duty assignments were only available in three circumstances: when the employee is injured on the job, when the employee is disabled under the Americans with Disabilities Act, or when the employee has lost her driving certification. Since pregnancy was not among those circumstances, Young was forced to take unpaid leave. She sued, citing the federal Pregnancy Discrimination Act (PDA). The law requires companies to offer accommodations to workers who are unable to perform their regular duties because of pregnancy. Both the federal judge and federal appeals court ruled against her. They noted a provision in the PDA that requires that pregnant women “shall be treated the same for all employment-related purposes, including receipt of benefits… as other persons not so affected but similar in their ability or inability to work.” The courts ruled that UPS’s policy did not discriminate based on pregnancy because all workers were treated alike. The question in the case is whether, despite this lack of explicit discrimination, the PDA still requires companies to provide an accommodation.

BORN IN JERUSALEM

Zivotofsky v. Kerry. This case stems from a long-running dispute between Congress and the Executive Branch over how best to treat the disputed political status of Jerusalem. Congress favors recognizing Jerusalem as Israel’s capital, and relocating the US embassy there. The Executive Branch, including the State Department, has resisted this approach, noting that it would undercut US diplomacy and the ability of the US to serve as an honest broker and peacemaker between Israelis and Palestinians – both of whom claim Jerusalem as their own. As part of this tug-of-war, Congress passed a statute allowing the American parents of a child born in Jerusalem to request that the newly issued passport of the child reflect that he or she was born in Jerusalem, Israel. The State Department refuses to comply with the law. In such circumstances, passports are issued with only the word Jerusalem as the place of birth. The Supreme Court must decide who has the authority to determine what information is recorded in a passport – Congress under its power to regulate passports, or the President under his power to recognize foreign governments.

DEAD FISH

Yates v. United States.  This is a case about an unscrupulous commercial fisherman in Florida and the creative federal prosecutor who sought to punish him for trying to outsmart a fisheries enforcement officer. The story begins with the routine boarding of a fishing boat at sea in the Gulf of Mexico to check the size of the catch. Regulations require fishermen to release any red grouper under 20 inches. Upon inspection, the fisheries officer found 72 undersized fish. He tossed the undersized fish into a box and instructed the captain, John Yates, to present the box to law enforcement officials when he arrived back at the dock. The officer then departed to continue his patrol. According to a crew member, the smallest of the undersized groupers never made it back to the dock. They were thrown overboard and replaced with larger fish. Law enforcement officers noticed the size difference at the dock. After obtaining a crew member’s confession, prosecutors sought to punish the captain for destroying evidence. They charged him under a provision of a law passed in the wake of the Enron scandal that makes it illegal to shred documents and financial statements during a federal investigation. The law prohibits destroying “any record, document, or tangible object” with intent to impede an investigation. In this case, the “tangible object” was an undersized red grouper. The consequences for the accused captain were monumental. Instead of a fine and possible jail sentence, he faced up to 20 years in federal prison. The issue before the Supreme Court is whether prosecutors abused their discretion and overcharged the captain or merely made creative use of a tough federal statute.