RELIST WATCH

Two more cases involving religious exercise claims

The Relist Watch column examines cert petitions that the Supreme Court has “relisted” for its upcoming conference. A short explanation of relists is available here.

Justice Samuel Alito has spoken of the importance of safeguarding the free exercise of religion, and recently, free exercise questions have been a particular focus of the Supreme Court. Both of this week’s new relists arise from religious exercise claims.

Seattle’s Union Gospel Mission v. Woods, 21-144, involves a nonprofit ministry that operates a free legal-aid clinic. The clinic is overtly religious; in addition to legal issues, clinic staff discuss Jesus with clients and sometimes pray with them. As a requirement of employment, the mission requires regular church attendance, a reference from the applicant’s pastor, and an explanation of the applicant’s relationship with Jesus; the mission also prohibits “homosexual behavior” as non-biblical.

Matthew Woods (a former intern) expressed interest in an open position for a staff attorney with the clinic and disclosed to the director of the clinic that he was currently in a same-sex relationship; he also indicated he was not attending church and provided no reference from a pastor. The director informed him that because his relationship violated the mission’s “religious-lifestyle” requirements he would not be able to apply. Woods applied anyway. The mission denied his application and he sued for employment discrimination, alleging a violation of Washington’s Law Against Discrimination, which forbids discrimination based on sexual orientation.

A Washington state trial court dismissed the lawsuit, concluding that the mission is statutorily exempt from state non-discrimination law because it is a religious nonprofit and thus falls under a statutory exception to what constitutes a covered “employer,” which excludes “any religious or sectarian organization not organized for private profit.” The Washington Supreme Court reversed, holding that the exemption may violate the Washington state constitution as applied to Woods, and suggested that the statute could constitutionally exempt employers only if the employee in question qualified as a “minister,” which the court considered a precondition for exemption from antidiscrimination law under the free exercise clause. Although the mission’s legal clinic is a faith-based organization that expects staff attorneys to “share their faith with clients,” the clinic also engages in providing legal services, and the court found “no indication that religious training is necessary” for such a position.

The mission’s cert petition — which was supported by a whopping 17 amicus briefs — contends it is entitled to hire only individuals who share its religious views; it also argues that the Washington anti-discrimination law should be subject to strict scrutiny because it completely exempts small businesses with seven or fewer employees. The Supreme Court rescheduled the case seven times before the justices finally discussed the case at their private conference, suggesting at least one of the justices is taking a very close look at the case.

Hedican v. Walmart Stores East, L.P., 21-648, most immediately presents a civil procedure question, but in the context of a religious exercise case. Walmart offered petitioner Edward Hedican a job as a salaried assistant manager at a store that is open 24 hours a day, seven days a week. Every other assistant manager works on a rotating schedule cycling through every shift. But Hedican is a devout Seventh-day Adventist and thus cannot work on his Sabbath from sundown Friday to sundown Saturday. Upon learning of that constraint, Walmart rescinded the offer saying accommodating it would impose an “undue hardship” on the company under Title VII of the Civil Rights Act because it would require the other assistant managers to work a disproportionate share of weekends and prevent Walmart from ensuring managers had experience working each shift. Walmart suggested that Hedican apply for a lower-paying hourly management position, but he did not do so. Instead he filed a charge with the Equal Employment Opportunity Commission, which filed an enforcement action against Walmart.

The district court granted Walmart summary judgment and the EEOC appealed. By a two-to-one vote, the U.S. Court of Appeals for the 7th Circuit affirmed, holding that Title VII does not require an employer to offer a religiously observant employee an accommodation that “comes at the expense of other workers,” and Walmart was not obligated to compromise its rotation system for managers. Judge Ilana Rovner dissented, saying Walmart had not done enough to attempt to accommodate Hedican’s beliefs. The EEOC sought rehearing en banc, which was denied. Hedican then for the first time sought to intervene to file a cert petition, because he understood the government was unlikely to seek Supreme Court review. The 7th Circuit denied the request, saying Hedican’s motion was untimely because he could have intervened before argument. The Supreme Court also denied intervention.

Hedican then filed a cert petition arguing the 7th Circuit erred in denying him intervention, and arguing that his case should be held for Cameron v. EMW Women’s Surgical Center.  And quite unusually, he argued that if he is granted relief, he should be allowed to file a second cert petition (which he attached to his main petition), arguing that the Supreme Court should revisit the standard governing religious exercise accommodations under Title VII.

Now back to the first petition: Cameron involved the Kentucky attorney general’s argument that the U.S. Court of Appeals for the 6th Circuit erred by not allowing him to intervene to defend the state’s abortion statute after another state official stopped defending its constitutionality. The Supreme Court decided that case earlier this month, holding that the attorney general should have been allowed to intervene. Walmart and the EEOC both oppose review, arguing that Hedican should have intervened earlier because the EEOC all along was representing the public interest, not Hedican individually. They argue that Cameron involved specifically sovereign interests to defend laws and does not affect Hedican’s claim. The ever-vigilant solicitor general also noted that the court also granted review in Arizona v. City and County of San Francisco and Berger v. North Carolina State Conference of the NAACP, both of which involve intervention, but she argues that neither is likely to bear on the timeliness issue here.

In his reply brief, Hedican broadens his request, asking for relief not only under Cameron but under eventual decisions in Arizona or Berger. He appears to be asking for summary reversal of the 7th Circuit decision denying intervention (or at least plenary review of that issue), and then to be permitted to file his second petition seeking review of the underlying issue of the standard for adequacy of accommodations under Title VII. Last term, Alito, joined by Justices Clarence Thomas and Neil Gorsuch, wrote a separate opinion when the court denied review on that issue saying that an inquiry into the proper standard for accommodation of religious exercise “should be undertaken when a petition in an appropriate case comes before us.”

The relisting of Hedican could simply be a routine matter of deciding what to do with a case in light of Cameron. It may be that one or more of the justices will again opine on the correct standard for accommodating religious exercise under Title VII. But it strikes me as quite unlikely that the court will do as Hedican asks and grant review on the underlying Title VII issue — though it obviously interests several of the justices.

That’s all for this week. Until next time, stay safe! 

New Relists

Seattle’s Union Gospel Mission v. Woods, 21-144
Issues: (1) Whether the First Amendment protects Seattle’s Union Gospel Mission’s right to hire coreligionists; (2) whether denying the Mission a total exemption from non-discrimination law that the state grants to secular, small businesses violates the free exercise clause; and (3) whether the Washington Supreme Court violated the free exercise clause by showing at least a “slight suspicion” of hostility to religious beliefs in deleting a total exemption the legislature bestowed.
(rescheduled before the Dec. 3, Dec. 10, Jan. 7, Jan. 14, Jan 21, Feb. 18 and Feb. 25 conferences; relisted after the March 4 conference) 

Hedican v. Walmart Stores East, L.P., 21-648
Issue: Whether the U.S. Court of Appeals for the 7th Circuit erred in holding that petitioner Edward Hedican’s post-judgment motion to intervene for the sole purpose of filing a petition for certiorari in the Supreme Court was untimely.
(rescheduled before the Feb. 25 conference; relisted after the March 4 conference)

Returning Relists

National Pork Producers Council v. Ross, 21-468
Issues: (1) Whether allegations that a state law has dramatic economic effects largely outside of the state and requires pervasive changes to an integrated nationwide industry state a violation of the dormant commerce clause, or whether the extraterritoriality principle described in the Supreme Court’s decisions is now a dead letter; and (2) whether such allegations, concerning a law that is based solely on preferences regarding out-of-state housing of farm animals, state a claim under Pike v. Bruce Church, Inc.
(relisted after the Jan. 7, Jan. 14, Jan. 21, Feb. 18, Feb. 25 and March 4 conferences)

Love v. Texas, 21-5050
Issues: (1) Whether Texas’ Court of Criminal Appeals, the only court of last resort reviewing direct appeals in death penalty cases, has decided an important federal question concerning a racially biased juror being allowed on a capital death penalty jury in violation of petitioner Kristopher Love’s rights under the Sixth and 14th Amendments to the United States Constitution; and (2) whether Texas’ Court of Criminal Appeals, the only court of last resort reviewing direct appeals in death penalty cases, has decided an important federal question concerning a racially biased juror in a way that conflicts with relevant decisions of the Supreme Court in violation of Love’s rights under the Sixth and 14th Amendments to the United States Constitution.
(relisted after the Jan. 7, Jan. 14, Jan. 21, Feb. 18, Feb. 25 and March 4 conferences)

Texas v. Commissioner of Internal Revenue, 21-379
Issues: (1) Whether an agency rule delegating rulemaking authority to a private entity violates the nondelegation doctrine; and (2) whether the statute of limitations applicable to a challenge to an agency rule that delegates rulemaking authority to a private entity starts to run when the agency delegates the authority or when the private entity exercises the delegated authority.
(rescheduled before the Dec. 10 and Jan. 7 conferences; relisted after the Jan. 14, Jan. 21, Feb. 18, Feb. 25 and March 4 conferences)

Reed v. Goertz, 21-442
Issue: Whether the statute of limitations for a 42 U.S.C. § 1983 claim seeking DNA testing of crime-scene evidence begins to run at the end of state-court litigation denying DNA testing, including any appeals (as the U.S. Court of Appeals for the 11th Circuit has held), or whether it begins to run at the moment the state trial court denies DNA testing, despite any subsequent appeal (as the U.S. Court of Appeals for the 5th Circuit, joining the U.S. Court of Appeals for the 7th Circuit, held below).
(relisted after the Feb. 18, Feb. 25 and March 4 conferences)