Potential nominee profile: Raymond Gruender

Raymond Gruender, who is 53, was appointed to the U.S. Court of Appeals for the 8th Circuit by President George W. Bush in 2004, after working in private practice and serving as a prosecutor in the Eastern District of Missouri, first as an assistant U.S. Attorney and then as U.S. Attorney. Gruender earned a B.A., an M.B.A. and a J.D. from Washington University in St. Louis. He served as Missouri state director for Sen. Bob Dole’s unsuccessful presidential campaign in 1996. Since his confirmation by a vote of 97-1, after an uncontroversial confirmation hearing, Gruender has provided a solidly conservative vote on the 8th Circuit. He appeared on President-elect Donald Trump’s original list of 11 potential Supreme Court nominees that was released on May 18, 2016.

Gruender’s deep Midwestern roots and lack of an Ivy League affiliation may be appealing if Trump is seeking a nominee who hails from outside the coastal elites. Gruender also has a compelling personal story. When he was in law school, his father, angered after Gruender’s mother fled to avoid spousal abuse, pulled a gun on Gruender and his siblings, shooting Gruender and his sister, and later committing suicide. According to an official Minnesota State Bar Association publication, Gruender “knocked his father to the floor before his 12-year-old brother could be shot.”

We reviewed over 120 cases in controversial areas in which Gruender either wrote or joined in an 8th Circuit opinion. As might be expected, Gruender has ruled consistently against criminal defendants in death penalty cases, including cases alleging that lethal injection protocols violate the Eighth Amendment and cases involving challenges to death sentences by defendants who claim intellectual disabilities. He has also written several opinions reflecting hostility to reproductive rights, and he has ruled in favor of employers in a number of employment discrimination cases. On the other hand, he has also been willing to deny qualified immunity to police officers in Section 1983 cases alleging the use of excessive force and other constitutional violations, and he has rebuked a school district for attempting to avoid providing equal access to school resources to a gay-straight alliance.

Abortion

Although Gruender, unlike Judge William Pryor of the U.S. Court of Appeals for the 11th Circuit, does not appear to have gone on record as vehemently opposing Roe v. Wade, his decisions suggest that he is receptive to chipping away at abortion rights under the Supreme Court’s post-Roe jurisprudence. Planned Parenthood Minnesota, North Dakota, South Dakota v. Rounds is a series of cases arising from a challenge to a 2005 South Dakota informed consent law that required physicians to give patients a written statement indicating that “the abortion will terminate the life of a whole, separate, unique, living human being” and describing “all known medical risks of the procedure and statistically significant risk factors to which the pregnant woman would be subjected,” including “[i]ncreased risk of suicide ideation and suicide.” Planned Parenthood requested a preliminary injunction challenging the constitutionality of the suicide advisory, among other provisions, arguing that it placed an undue burden on women seeking abortions and burdened physicians’ First Amendment rights by compelling them to speak. A federal district court granted the injunction on the compelled speech ground, and a panel of the 8th Circuit affirmed, over Gruender’s dissent. The en banc court of appeals then reversed and remanded the panel’s decision, vacating the preliminary injunction; Gruender wrote the 2008 opinion for the en banc court.

Gruender first examined the standard for determining whether the preliminary injunction was warranted, concluding that because Planned Parenthood “sought to enjoin the implementation of a duly enacted state statute,” thereby attempting to “thwart a state’s presumptively reasonable democratic processes,” it was required to demonstrate a “likelihood of success on the merits” rather than merely a ‘fair chance of prevailing.’” Gruender went on to examine “the contours of the right not to speak” under the framework set forth in the Supreme Court’s 1992 plurality opinion in Planned Parenthood of Southeast Pennsylvania v. Casey and amplified in 2007 in Gonzales v. Carhart.

Those cases establish, he explained, that “while the State cannot compel an individual simply to speak the State’s ideological message, it can use its regulatory authority to require a physician to provide truthful, non-misleading information relevant to a patient’s decision to have an abortion, even if that information might also encourage the patient to choose childbirth over abortion.” Therefore, “Planned Parenthood cannot succeed on the merits of its claim that [the informed consent requirement] violates a physician’s right not to speak unless it can show that the disclosure is either untruthful, misleading or not relevant to the patient’s decision to have an abortion.” Gruender concluded that the district court had abused its discretion when it “ignored the statutory definition of ‘human being,’” which he stated is a “narrow, species-based definition” that does not include an ideological component, and that when the compelled disclosures are read in conjunction with that definition, they are not untruthful, misleading, or irrelevant.

On remand, the district court granted summary judgment for Planned Parenthood on the unconstitutionality of the suicide advisory, finding no evidence to establish that suicide was a “known medical risk” of abortion, and a panel of the 8th Circuit affirmed. The case again arrived at the en banc 8th Circuit, which granted partial rehearing to address the suicide advisory issue. In 2012, Gruender wrote another majority opinion for the en banc court reversing the district court’s finding that the advisory both unduly burdened abortion rights and violated the First Amendment rights of physicians.

Gruender began by quoting his own previous en banc opinion asserting that Casey’s three-part standard governed both questions, stating that “to succeed on either its undue burden or compelled speech claims, Planned Parenthood must show that the disclosure at issue ‘is either untruthful, misleading or not relevant to the patient’s decision to have an abortion.’”

Gruender observed that the district court had construed the statute “to require a disclosure of a conclusive causal link between abortion and suicide.” However, he explained, to interpret the term “increased risk” in the statute, courts should rely on “the relevant medical field.” Judged in that light, he concluded that the medical literature in the record “consistently uses the term ‘increased risk’ to refer to a relatively higher probability of an adverse outcome in one group compared to other groups — that is, to ‘relative risk.’” Having determined that the suicide provision requires disclosure of a statistical association between abortion and suicide rather than of a finding of a direct causal link between abortion and suicide, Gruender concluded that the disclosure is both truthful and relevant and is not misleading.

In Roach v. Stouffer, a case involving the First Amendment rights of pro-life advocates, Gruender wrote a 2009 panel opinion affirming a district court’s injunction against enforcement of a Missouri statute governing issuance of specialty license plates; the statute allowed the state to deny issuance of a plate if five house members or two senators opposed it. The plaintiffs had challenged the state’s denial of a “Choose Life” license plate after two pro-choice Missouri senators registered their opposition and the committee charged with issuing the plates rejected the plaintiffs’ request for reconsideration of the denial.

The court’s opinion first considered whether the “Choose Life” license plate constituted private speech or government speech. It found (contrary to the Supreme Court’s later ruling in Walker v. Texas Division, Sons of Confederate Veterans, Inc.) that because “the specialty plates bear sufficient indicia of private speech, … a reasonable and fully informed observer would recognize the message on the ‘Choose Life’ specialty plate as the message of a private party, not the state,” and “the messages communicated on specialty plates are private speech, not government speech.” Therefore, any government regulation of the license plates was required to be viewpoint-neutral. The opinion went on to conclude that because the statute setting forth the procedures for issuing the specialty plates allowed the committee issuing the plates “unbridled discretion to determine who may speak based on the viewpoint of the speaker,” it “allows for viewpoint discrimination and is therefore unconstitutional.”

Contraception

In 2007, in In Re: Union Pacific Railroad Employment Practices Litigation, Gruender wrote for a panel of the 8th Circuit reversing a district court ruling holding that the failure of the railroad to provide insurance coverage for contraceptives used solely to prevent pregnancy constituted sex discrimination, in violation of Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act. The district court had held that “Union Pacific violated Title VII, as amended by the PDA, because ‘it treats medical care women need to prevent pregnancy less favorably than it treats medical care needed to prevent other medical conditions that are no greater threat to employees’ health than is pregnancy.’”

The PDA provides that “women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes … as other persons not so affected but similar in their ability or inability to work․” In considering whether contraception is a medical condition “related” to pregnancy, Gruender relied on an 8th Circuit case holding that the PDA does not extend to infertility treatments “because infertility prevents conception, while pregnancy, childbirth and medical conditions related to them can occur only after conception.” He concluded that “contraception is not ‘related to’ pregnancy for PDA purposes because, like infertility treatments, contraception is a treatment that is only indicated prior to pregnancy”; it is also “not a gender-specific term like ‘potential pregnancy,’ but rather applies to both men and women like ‘infertility,’” rendering it “gender-neutral.” He declined to give any weight to an Equal Employment Opportunity Commission decision interpreting the PDA to cover prescription contraception for women in some circumstances, finding the decision entitled to minimal deference and “unpersuasive.”

Gruender’s opinion also rejected the plaintiffs’ claims of gender discrimination under Title VII, holding that the district court erred in comparing the lack of contraceptive coverage to the provision of equivalent medical services for men, such as medication for male-pattern baldness. According to Gruender, the “proper comparator is the provision of the medical benefit in question, contraception”; because “Union Pacific’s health plans do not cover any contraception used by women such as birth control, sponges, diaphragms, intrauterine devices or tubal ligations or any contraception used by men such as condoms and vasectomies,” “the coverage provided to women is not less favorable than that provided to men.”

School Desegregation, Affirmative Action and Employment Discrimination

The woeful history of school segregation in Little Rock, Arkansas, has offered Gruender several opportunities to review cases stemming from desegregation suits. His opinions in that context have tended to limit district court discretion to modify consent and remediation decrees and thereby to increase the likelihood that a school district will be found to have met its desegregation goals. In 2006, in Little Rock School District v. North Little Rock School District, Gruender dissented from an 8th Circuit panel decision affirming a district court order rejecting the request of the Little Rock school district to be relieved of federal desegregation monitoring. The majority held that the district court “did not clearly err in finding that LRSD had failed to demonstrate substantial compliance” with agreed-upon desegregation plans.

In dissent, Judge Gruender agreed that the school district had not complied with the plans, but argued that the “district court’s substitution of a new set of rigorous evaluations not agreed to by the parties was an abuse of discretion.” Among other things, Gruender noted, “the district court introduced a requirement that LRSD’s ‘program assessment process must be deeply embedded as a permanent part of LRSD’s curriculum and instruction program.’” In his view, the “introduction of the impossibly subjective ‘deeply embedded’ requirement … raises the specter that the district court intends to retain control of LRSD’s efforts to close the achievement gap regardless of whether LRSD meets the terms agreed to by the parties.” In 2009, in Little Rock School District v. North Little Rock School District, a panel of the court of appeals affirmed a district court ruling finding that LRSD had effectively met its obligations under the relevant plans; the district court had agreed with Gruender that its “deeply embedded” requirement was unwarranted; Gruender concurred in the judgment, writing separately to explain that although he believed that the district court was bound by the law of the case to abide by the “deeply embedded” standard despite its flaws, “the district court effectively found that the ‘deeply embedded’ requirement had been met.”

In Little Rock School District v. Arkansas, in 2011, Gruender wrote for a panel of the appeals court in related, consolidated school-desegregation cases. The court reversed a district court order denying the request of the North Little Rock School District to be freed from federal desegregation monitoring in the area of staff recruitment, concluding that “there was no basis for the district court to impose upon NLRSD, with no advance notice, a more extensive set of collection and reporting requirements with respect to staff recruiting.” With respect to another school district, the court affirmed the trial court’s order requiring continued monitoring in nine separate areas, finding no reason to disagree with the trial court’s reliance “in large part on evidence of PCSSD’s lack of good faith.” And in Mays v. Board of Education of Hamburg School District, in 2016, Gruender joined a panel decision holding that “‘changing demographics’” and other developments constituted a “’significant change in circumstances’” that justified modification of a consent decree to allow closing of a particular elementary school.

Gruender also wrote for an appeals court panel in Humphries v. Pulaski County Special School District, a 2009 reverse-affirmative-action case arising in the context of school desegregation. The plaintiff, a white educator, claimed that she was denied several positions within the school district based on her race. The district court granted summary judgment for the school district, and the court of appeals reversed. The school district had claimed that “its policies for employment and promotion were promulgated in response to court orders requiring the District to desegregate and implement procedures that would make the District attractive to minority students, teachers, and administrators.” Gruender wrote for the court that “evidence that an employer followed an affirmative action plan in taking a challenged adverse employment action may constitute direct evidence of unlawful discrimination” and that “Humphries has raised a genuine issue of material fact concerning whether there was a specific link between the District’s decision not to promote her and the District’s various affirmative action policies.” The court went on to conclude that the school district could not establish that its policies were remedial, and therefore valid, simply by relying on an assertion that the policies were adopted to comply with desegregation-related consent decrees.

In Torgerson v. City of Rochester in 2011, Gruender joined an en banc opinion affirming a district’s court grant of summary judgment to the city in a Title VII case filed by two applicants rejected as firefighters, who alleged disparate-treatment discrimination based on national origin and gender. The en banc court held that employment discrimination cases are not subject to a special standard of review for summary judgment. And in Qamhiyah v. Iowa State University of Science and Technology, in 2009, Gruender joined a panel decision holding that the plaintiff had not established that the reasons given by her employer for denying her tenure were pretextual.

Gruender has written opinions ruling against employees in other workplace discrimination cases. In Anda v. Wickes Furniture Co., in 2008, Gruender wrote a panel opinion affirming a district court’s grant of summary judgment for an employer in a sexual harassment case. Gruender found that the complained-of behavior by another employee “did not rise to the level of severe or pervasive conduct necessary to establish a hostile work environment claim.” And in 2006, in Cottrill v. MFA, Inc., Gruender wrote for a panel that came to the same conclusion in a case in which an employee’s supervisor had installed a peephole in the woman’s rest room. Gruender noted that a Title VII plaintiff “’may only rely on evidence relating to harassment of which she was aware during the time that she was allegedly subject to a hostile work environment’”; the panel, over the dissent of one judge, held that aside “from the peeping activities of Adkins, which Cottrill did not subjectively perceive,” the other conditions the employee objected to “were not so objectively hostile as to poison Cottrill’s work environment.”

Voting Rights

Gruender’s record in voting rights cases has varied. In Cottier v. City of Martin, in 2010, he joined an en banc opinion (written by Judge Steven Colloton, who is also on Trump’s shortlist) overruling a previous en banc decision in favor of the plaintiffs; in determining that it should not be bound by the previous decision, the en banc court invoked federalism principles, deeming it “exceptionally important for a federal court to ensure that there is a proven violation … before ordering a city in South Dakota to undertake significant changes in its electoral process.” The court went on to conclude that the plaintiffs had not established the requisite preconditions for a vote dilution claim under Section 2 of the Voting Rights Act because they had not demonstrated that “the white majority in Martin voted sufficiently as a bloc to enable it usually to defeat the minority’s preferred candidate in city council elections.” But in Bone Shirt v. Hazeltine, in 2006, Gruender concurred separately in a panel opinion finding that Native American voters had established a Section 2 violation under the framework set forth in Cottier. In his concurrence, he emphasized that “the issue of whether the totality of the circumstances indicates that South Dakota violated Section Two is a closer call than reflected in the Court’s opinion,” but concluded that the district court’s overall findings were not clearly erroneous. And in 2008, United States v. Missouri, Gruender joined a panel opinion reversing a district court finding that Missouri had met its requirement to conduct a general program of voter list maintenance under the National Voter Registration Act of 1993 and remanding for additional consideration of noncompliance by the local election authorities.

In Missouri Protection and Advocacy Services v. Carnahan, in 2007, Gruender joined a panel (that also included retired Justice Sandra Day O’Connor) in denying an equal protection challenge to a Missouri law prohibiting people under guardianship for mental incapacity from voting, ruling that the statute at issue did not impose a categorical ban on voting, that the plaintiff’s guardianship order expressly preserved his right to vote, and that MPAS lacked standing to raise non-categorical equal protection claims.

Campaign Finance and Political Expression

Several cases implicating political expression and campaign finance regulation indicate that Gruender is skeptical of, but not categorically opposed to, restrictions on speech in the campaign context. In Minnesota Majority v. Mansky, he joined a 2013 panel ruling rejecting a facial First Amendment and equal protection challenge by a group of Tea Party and other activists to a Minnesota rule barring display of political insignia at polling places. The majority found that the rule was reasonable in light of the state’s “legitimate interest in ‘maintain[ing] peace, order and decorum’ in the polling place,” as well as the state’s “compelling interest in ‘protecting voters from confusion and undue influence’ and ‘preserving the integrity of its election process.’” However, the majority sent the case back to the district court for re-evaluation of the group’s as-applied First Amendment challenge, finding that the district court had improperly considered matters outside the pleadings.

In Wersal v. Sexton, in 2012, Gruender joined a partial dissent from an en banc opinion upholding the constitutionality of provisions of the Minnesota Code of Judicial Conduct prohibiting a judicial candidate from personally soliciting funds and publicly endorsing or opposing other candidates; the dissent (written by Colloton) argued that “content-based restrictions on speech of judicial candidates must, at a minimum, withstand strict scrutiny under the First Amendment” and that the two provisions at issue failed that test. (Gruender had previously voted with an en banc majority to strike down an earlier version of the solicitation provision, along with a ban on partisan activities, in Republican Party of Minnesota v. White, in 2005, on remand from the Supreme Court.)

In Minnesota Citizens Concerned for Life, Inc., v. Swanson, in 2012, Gruender joined an en banc majority reversing a district court’s denial of preliminary injunction against enforcement of various reporting requirements imposed on independent-expenditure political funds by Minnesota’s campaign finance law and affirming the district court’s denial of a preliminary injunction against implementation of the law’s ban on corporate political contributions. And in St. Paul Area Chamber of Commerce v. Gaertner, in 2006, Gruender voted to reverse a district court ruling dismissing for lack of standing a challenge by three city chambers of commerce to limits on corporate contributions to candidates for political office.

Commerce Clause

Gruender has voted to uphold various criminal laws against claims that they are beyond the scope of Congress’ authority under the commerce clause. Examples include several cases upholding the federal Sex Offender Registration and Notification Act against commerce clause challenges, including United States v. Terrell, United States v. Doyle, United States v. Sharp and United States v. Mefford.

Immigration

Gruender has voted both for and against immigrants. For example, in Zheng v. Ashcroft, in 2005, he voted to vacate a Bureau of Immigration Appeals order denying an asylum claim, agreeing that the applicant had established a reasonable fear of persecution by introducing evidence that she feared being forcibly sterilized or forced to have an abortion under China’s coercive population control policies. But in Zheng v. Holder, he voted to uphold a removal order in the case of an immigrant who also claimed fear of persecution due to forced sterilization, because the record contained evidence that the immigrant had committed a violent nonpolitical crime outside the United States.

Death Penalty, Criminal Law and Suits against Police

Gruender has provided a reliable vote against defendants in death penalty cases, siding with the state in virtually every case and writing for panels of the appeals court in several cases denying habeas relief to death row inmates. For example, in 2013, in Purkey v. United States, Gruender wrote an opinion for a panel of the appeals court holding that a defendant was not prejudiced by his trial counsel’s allegedly deficient performance. In 2006, in Rousan v. Roper, he wrote for a panel rejecting a challenge to, among other things, the trial court’s erroneous characterization of one of the aggravating circumstances during the penalty phase of the defendant’s trial.

In In re Lombardi, in 2014, Gruender wrote a separate concurrence in an en banc opinion in a challenge to Missouri’s lethal injection protocol, in which the court issued a writ of mandamus prohibiting the district court from enforcing its orders directing disclosure “to opposing counsel of the identities of the physician who prescribes the phenobarbital used in Missouri executions, the pharmacist who compounds the chemical, and the laboratory that tests the chemical…” The court ruled that without “a plausible allegation of a feasible and more humane alternative method of execution, or a purposeful design by the State to inflict unnecessary pain, the plaintiffs have not stated an Eighth Amendment claim based on the use of the compounded phenobarbital,” and therefore disclosure of the information was unwarranted. And in Zink v. Lombardi, in 2015, Gruender joined an en banc majority rejecting an Eighth Amendment challenge to Missouri’s lethal injection protocol, concluding, among other things, that the inmates bringing the challenge had not adequately alleged a “substantial risk of severe pain” or “that another execution procedure exists that is feasible and readily implemented, and that the alternative method will significantly reduce a substantial risk of severe pain.”

Gruender has also been less than receptive to efforts to exclude defendants with intellectual disabilities from eligibility for the death penalty. In 2007, in Simpson v. Norris, Gruender joined a dissent from an order denying en banc review in an Arkansas case in which a defendant sought exemption from the death penalty because of intellectual deficiencies; the dissenters wanted to rule on the question whether “Arkansas may enforce its procedural requirement that a claim of mental retardation must be raised in a timely way through the means specified by state law.” And in Goodwin v. Steele, in 2014, Gruender voted to reject an inmate’s request to file a second or successive habeas corpus provision based on his intellectual disability, holding that the inmate had not established that the Supreme Court’s 2014 decision in Hall v. Florida, which allowed death row defendants claiming intellectual disability to present additional evidence in certain circumstances, was retroactive.

Gruender appears open to the use of victim impact statements in capital cases. In Storey v. Roper, in 2010, Gruender wrote a separate concurrence in a case denying habeas relief to a death-row inmate in order to disassociate himself from “the opinion’s thinly-veiled criticism of Payne v. Tennessee, … the governing Supreme Court precedent regarding the admissibility of victim impact evidence in capital sentencing trials,” arguing that after “Payne, victim impact evidence is no longer to be treated as a separate category, subject to special constitutional restrictions.”

Interestingly, Gruender has ruled against police officers in Section 1983 cases on at least two occasions. In Blazek v. City of Iowa City, in 2014, he concurred in part and dissented in part in a case in which the panel denied police officers’ claims of qualified immunity with regard to one of their actions in restraining the plaintiff and granted them with respect to several others. Gruender would have gone further than the panel by denying the officers any qualified immunity “for their use of force to handcuff Blazek, which a reasonable jury could conclude caused a separated shoulder, a torn rotator cuff, and a fractured ankle.” And in Johnson v. Phillips, in 2011, he joined a panel ruling denying an officer’s claim of qualified immunity because the officer lacked reasonable suspicion to detain the plaintiff curing a traffic stop, illegally searched her car and assaulted her sexually.

Free Speech and Equal Access Act

Gruender has been involved in two cases involving members of the Westboro Baptist Church, a virulently anti-gay organization. In Phelps-Roper v. City of Manchester, Missouri, in 2012, Gruender joined the en banc court in rejecting a First Amendment challenge to a city ordinance setting limits on picketing at funerals. The plaintiffs, who “assert that God punishes America by deaths of its citizens for tolerating homosexuality” and “picket at funerals and other public places to express their beliefs,” challenged the ordinance, asserting that “the First Amendment protects their right to display their messages at the time and place of their choosing.” The en banc court held that the Manchester ordinance was content-neutral and survived intermediate scrutiny because it was narrowly tailored to protect a significant government interest in protecting the privacy of funeral attendees. And in 2016, in Phelps-Roper v. Koster, Gruender joined a panel opinion holding that the plaintiff’s case was moot because the municipality had repealed the ordinance in question and reversing the district court’s calculation of the plaintiff’s attorney’s fees because “it did not accurately reflect her degree of success of her interrelated claims.”

In Miller v. City of St. Paul, in 2016, Gruender joined a panel opinion in a Section 1983 suit against a police department and a police officer, in which the plaintiff claimed that the officer had violated the plaintiff’s First Amendment rights by informing him that he would not be permitted to display signs communicating his evangelical Christian beliefs at an Irish Fair. The district court had dismissed the suit for lack of standing; the panel affirmed with respect to the claims against the police department and the officer in her official capacity, but reversed as to the claims against the officer in her individual capacity, holding that the plaintiff had adequately alleged that the officer had overstepped her authority and that the officer’s expressed intent to confiscate the plaintiff’s banners created a concrete threat of injury.

In Straights and Gays for Equality v. Osseo Area Schools, in 2008, Gruender joined a panel ruling in favor of a gay-straight student club’s claim under the Equal Access Act, holding that the school had not provided SAGE with “equal access to available avenues of communication as provided to other noncurriculum related groups” and that the “EAA would be too easily circumvented should merely placing favored groups within the rubric of student government suffice to classify them as curriculum related.”

Religion

The most notable religion case in Judge Gruender’s jurisprudence is Trinity Lutheran Church of Columbia, Inc., v. Pauley, a case that is on the Supreme Court’s docket for the current term (and which has yet to be set for argument, even though the court agreed a year ago to review it). Trinity Lutheran involves a challenge by a church-affiliated nursery school and day-care center to a state’s refusal to award it a grant to resurface its playground. In denying the grant application, the state had relied on a provision of the Missouri constitution that prohibits state funding of religious institutions. The church argued that the state’s refusal to award the grant violated the free exercise and equal protection clauses of the U.S. Constitution. Gruender dissented in part from a 2015 8th Circuit panel ruling affirming the district court’s dismissal of the church’s case, arguing that the church had stated a valid constitutional claim because “in the absence of a historic and substantial interest, the Department’s ‘latitude to discriminate against religion . . . does not extend to the wholesale exclusion of religious institutions and their students from otherwise neutral and generally available government support.’”

In another case involving a challenge to a state constitutional prohibition on state funding of religious institutions, Pucket v. Hot Springs School District, in 2008, Gruender wrote a panel opinion holding the plaintiffs, parents and students at a parochial school, who were challenging a school district’s cessation of busing for parochial school students, lacked standing to bring their claim because they never requested that busing be reinstated. Gruender rebuked the plaintiffs, writing that “the Puckets may well have deliberately failed to request that the School District reinstate busing in an attempt to create a case or controversy for the overriding purpose of challenging the constitutionality of the South Dakota Constitution provisions,” and that in “light of the strong evidence that the School District would have resumed busing if the Puckets had requested it, … we cannot sanction the Puckets’ attempt to manufacture a lawsuit designed to challenge the South Dakota Constitution provisions without having met the essential elements of standing.”

The receptiveness to free exercise claims Gruender displayed in Trinity Lutheran generally does not extend to claims brought by prison inmates. He has ruled against inmates in several challenges to limits on religious observances in prison, such as McCroy v. Douglas County Corrections Center in 2010, holding that confiscation and delayed return of religious items did not amount to a constitutional violation, Hodgson v. Fabian in 2010, holding that inmate’s inability to keep prayer oils in his cell and delays in receiving religious mail did not impermissibly burden his ability to practice his Wiccan religion, Jones v. Conrad in 2014, denying an inmate’s claims that denial of permission to receive certain publications violated the First Amendment’s free exercise clause and the Religious Land Use and Institutionalized Persons Act, and Fowler v. Crawford, in 2008, holding that refusal to provide an inmate with a sweat lodge did not violate RLUIPA. In 2008, in Patel v. United States Bureau of Prisons, Gruender wrote the opinion in a case ruling that the prison’s lack of halal dietary offerings did not substantially burden an inmate’s religious practices.

One significant 8th Circuit case suggests that Gruender may be less apt to recognize an establishment clause violation than a free exercise violation (at least in cases not brought by prison inmates). In ACLU Nebraska Foundation v. Plattsmouth, in 2005, Gruender voted with an en banc majority, over the dissent of four judges, to reverse a decision finding that display of a Ten Commandments statue in a town park violated the establishment clause. Analyzing the case under the Supreme Court’s then-recent decision in Van Orden v. Perry, which held that display of a similar monument on the grounds of the Texas state capitol was not an establishment clause violation, the en banc majority concluded that “the Plattsmouth monument makes passive—and permissible—use of the text of the Ten Commandments to acknowledge the role of religion in our Nation’s heritage.”

Andrew Hamm contributed extensively to this post, identifying, reviewing and analyzing the cases summarized above.