Virtual SCOTUS: Religious Liberty Edition

(It looks like the final cases will be handed down tomorrow.  Before 10AM, I thought that there would be at least two more decision days -- also was right that Alito would write one of these opinions -- though sorta thought it would continue until next week. We will have a clean-up order on Friday or Monday too.)

We had a bit of news on Tuesday.  First, long term female employees (the marshal and reporter) will retire.  Also, it came out -- after he kept it private (cf. RBG, who repeatedly tells us what happens to her, but he is after all twenty years younger and not deemed a step away from death's door etc.) -- Roberts collapsed (Strict Scrutiny Podcast mentioned a lot of blood) in June but apparently it was just him being dehydrated. Nothing serious. 

Given his position and the fact it will come out anyways, I agree full disclosure here would have been the better approach. And, just do it by a press release, on the page. None of this sending messages to the media.  I'm tired of getting news indirectly like that.  As to the continual assurances about "all the justices are healthy" bit, well, the idea is that he is.  That doesn't mean the justices lack any issues, including the general health issues.

It's important in today's SCOTUS decision not to lose sight of the people involved. One teacher, Agnes Morrissey-Berru, alleges she was fired because of age discrimination. The other, Kirsten Biel, said she was fired after revealing she had breast cancer. Ms. Biel has since died.

— James Martin, SJ (@JamesMartinSJ) July 8, 2020

Yes.  The same thing as to his comment about targeting GLBTQ employees.  The constitutional issue is the specific thing involved here on the SCOTUS level, but there are other issues too.  As to that, the ruling was 7-2 with Sotomayor (with RBG) with a strong dissent.  The dispute is a reach of an earlier decision involving a ministerial employees at a religious school.  The original case was problematic since it allowed religious schools to avoid neutral discrimination laws that do not involve religious disputes.  I understand the caution in fine tuning what sort of teacher is "religious enough" shall we say, but the rule here can be very open-ended.  Time will tell how much.  

There is also a usefulness in thinking broad in the contraceptives mandate case.  The PPACA includes a provision for preventive care with specific concern for women's health.  Contraceptives is but one aspect here, but it is a common sense one that was well understood to be part of what was covered.  The specific debate here is the discretion to have a broad religious and moral (of particular concern) exemptions.  As RBG (with Sotomayor) notes in dissent "the government has estimated between 70,500 and 126,400 women would lose their “no-cost contraceptive services” if more employers were exempt from providing it."  An open-ended approach here burdens third party employees, which as RBG notes, has religious liberty problems. 

The issue again arises -- just what does "religious liberty" mean?  Opponents of this result talk about health care, birth control rights and maybe economic rights (health care coverage part of compensation).  But, how I see it, the religious and moral rights of the employees are in the mix too.  Our laws protect religious liberty in various ways, including providing religious exemptions to employees and those in prisons.  So, e.g., you will still get unemployment benefits if you cannot work because of a religious belief.  The needs of the employees here if anything are stronger specifically than the Little Sisters of the Poor, who as I understand it will be exempted anyway given the nature of church plans. 

The whole set-up does get rather complicated in the weeds.  So, Kagan (with Breyer) argues that Chevron deference gives the executive here the ability to parse just what is required (or allowed by its discretion), she thinking neither Thomas (for the majority) or RBG right to think things are so clear.  But, (and on this Alito with Gorsuch in a separate opinion agrees as to the likelihood of a claim arising, but Alito would say RFRA requires the exemption here) it very well might later be determined it was done in an arbitrary way.  RBG thinks they bent over backwards too far in favor of the religious (and moral) beliefs of some, burdening third parties.  Legislative clarity would be helpful.

Finally, an hour or so ago, the Supreme Court (without comment) turned down the final appeals of Billy Wardlow.  His basic claim was that Texas did not have the ability to show danger of future dangerousness after his murder at eighteen.  The person at that age is still developing and in effect it builds on the fact we do not allow executions for those under eighteen.  The coverage has also spelled out that in the twenty-five or so years he has been in prison (though he still is only in his 40s), he “known for counseling prisoners having emotional trouble, fixing their typewriters, and scrubbing the showers to bring them to his personal level of cleanliness.” 

This does not seem like one of those "worse of the worst" cases that require us to have to make pure decisions on how the death penalty per se is wrong.  Saw some mention about how he shouldn't be executed for a "mistake" at eighteen.  Will not frame it that way.  But, still as a matter of public policy, it seems like a bad call.  And, there is at least a serious due process and Eighth Amendment claim too.  I'm disappointed that neither Breyer (who is especially concerned about those on death row for a long time) or Sotomayor said nothing.  Anyway, after a lag since February, Texas has executed him.