Native Americans, a Rastafarian prisoner and Jewish professors appeal to Supreme Court

Daily News Article   —   Posted on October 8, 2024

(by Pamela Manson, UPI) — Native Americans trying to protect their sacred land, a Rastafarian prisoner who wants to sue correctional officers for shaving off his dreadlocks and Jewish professors seeking to drop union representation to protest alleged anti-Semitic conduct are among those asking the U.S. Supreme Court to hear an appeal in their cases.

The court’s 2024-25 term started Monday, and decisions are pending on whether to grant reviews in those cases, as well as many other religious liberty cases.

In the previous term that began in October 2023, no religious liberty cases were on the Supreme Court docket, according to Mark Rienzi, president and CEO of the Becket Fund for Religious Liberty, a nonprofit public interest law firm.

“That’s a big shift from the past dozen terms or so, where we had a pretty steady flow of religious liberty cases,” he said in a recent phone briefing about the Supreme Court term.

Western Apache and their allies

Becket represents a group of Western Apache and their allies who are fighting to stop the construction of a mine in Arizona at Oak Flat, also known as Chi’chil Bildagoteel, where Indigenous people have worshipped for centuries.

Earlier this year, the 9th U.S. Circuit Court of Appeals declined to stop the federal government from transferring Oak Flat to Resolution Copper Mining in a swap for conservation land.

The plaintiffs, who formed a coalition called Apache Stronghold, allege their rights under the Free Exercise Clause of the First Amendment and the Religious Freedom Restoration Act were violated.

The act bars the government from substantially burdening a person’s exercise of religion except in furtherance of a compelling governmental interest — and only if an action is the least restrictive means of furthering that interest.

The lower courts have found there is no burden on the plaintiffs, and now the mining company plans to turn Oak Flat into a 2-mile-wide pit, Rienzi said.

He said everyone should be concerned when a fellow citizen’s rights are violated “because if the federal government can say it’s no burden to blow up a Native American sacred site, then next time it would be no burden to blow up yours.”

Resolution Copper said Monday in a written statement to UPI that the case is about the government’s right to use national land to pursue national interests, “a settled authority that the Supreme Court and other courts have consistently reaffirmed over decades.”

“The Resolution Copper project is vital to secure America’s energy future, infrastructure needs, and national defense with a domestic supply of copper and other critical minerals,” the statement said.

“We are encouraged by the significant community support for the project, which will supply nearly one quarter of America’s copper needs, add $1 billion a year to Arizona’s economy and create thousands of local jobs in a region where mining has played an important role for more than a century.”

The statement also said the company’s dialogue with local Native American Tribes and communities will continue to shape the project.

Nazarite vow on cutting hair

As a devout Rastafarian, Damon Landor took the Nazarite vow, the biblical oath taken by Samson that requires him to abstain from cutting his hair.

By the time he began serving a five-month sentence at a Louisiana prison in 2020, Landor’s dreadlocks were almost down to his knees. He was allowed to wear a Rasta cap over his long hair and had no problems until three weeks before the end of his term, when he was transferred to another prison.

Landor brought with him a copy of a 2017 decision by the 5th U.S. Circuit Court of Appeals that said Louisiana’s policy of cutting the hair of Rastafarians violated the Religious Land Use and Institutionalized Persons Act, and he showed it to the intake guard.

The act prohibits regulations that impose a “substantial burden” on the religious exercise of persons confined to institutions.

The guard threw the papers in the trash and summoned the warden, who asked Landor if he had documentation about his religious beliefs from his sentencing judge, according to his appeal. He did not, but offered to contact his lawyer to get the documents.

But on instructions of the warden, Landor was handcuffed to a chair and two guards held him down while a third one shaved him bald, the appeal says.

After he served his time, Landor filed suit accusing the prison officials of violations of law.

In a ruling dismissing the claims, a judge said that based on precedent, the law does not provide for damages against individual state officials. A three-judge panel of the 5th Circuit upheld the dismissal, saying they “emphatically condemn” Landor’s mistreatment, but that he could not seek money damages from them.

Landor’s appeal notes the Supreme Court ruled in 2020 that government officials can be sued in their individual capacity for damages for violations of the Religious Freedom Restoration Act and that the Religious Land Use and Institutionalized Persons Act relevant language is identical.

[At stake is not only Landor’s right to grow his hair, but a provision of the Religious Land Use and Institutionalized Persons Act, which governs such regulations, regarding the payment of damages in cases of violation. Currently, prisons officials aren’t bound to pay damages under the RLUIPA

“Without damages, this law provides no real protection, and members of minority faiths in particular are exposed to serious abuse,” said Zack Tripp, an attorney for Weil, Gotshal & Manges, the firm representing Landor.]

Ending union representation

Avraham Goldstein and four other professors at the City University of New York who are Jews and Zionists (supporting the state of Israel as the Jewish homeland) resigned in protest from the Professional Staff Congress/CUNY after the academic labor union issued a resolution in 2021 supporting the Palestinian people.

The resolution encouraged support for the Boycott, Divestment and Sanctions movement against Israel, which it referred to as an “apartheid state,” and the professors viewed the statement as anti-Israel and anti-Semitic.

The professors are no longer members of Professional Staff Congress (PSC) union, but under New York state law, when a union is certified by the state Public Employment Relations Board, it is the exclusive representative of all employees in the negotiating unit.

In addition, the law governing public-sector collective bargaining in the state was amended in 2018 to reduce the duties public-sector unions owe to nonmembers.

[In 2021, the PSC issued a resolution that encouraged support for the Boycott, Divestment, and Sanctions (BDS) movement. The resolution referred to Israel as an “apartheid” state. Obviously, Avraham and other professors viewed the statement as anti-Israel and anti-Semitic. They resigned their union membership in protest. However, the PSC did not immediately acknowledge several of the professors’ resignations and continued taking union dues from their paychecks.

The Supreme Court’s 2018 decision in Janus v. AFSCME held that nonmember public employees could not be forced to pay fees to a union. The ruling explicitly stated that doing so would violate their First Amendment rights.

But the Janus decision did not address the reality Avraham and his five co-plaintiffs now faced: As nonmembers, they nonetheless must accept the “exclusive representation” of a union they believe is anti-Semitic. They cannot choose other representation or represent themselves with their employer.]

Seeking to disassociate from the union, the professors filed suit in 2022 alleging that it continued to advocate positions that singled them out for hatred and harassment based on their religious beliefs and ethnic identity.

A sixth professor, who is not Jewish and disagreed with many of PSC’s positions and its “political radicalization,” joined the lawsuit, which was filed by the Fairness Center and the National Right to Work Foundation on behalf of the plaintiffs.

The case was dismissed by a trial judge and the 2nd U.S. Circuit Court of Appeals affirmed the ruling, leading the plaintiffs to petition the Supreme Court to hear the case.

Dissociating is a common way to express displeasure with the conduct or positions of the person or entity being shunned, the appeal says, noting that the First Amendment protects the rights of individuals, and especially religious dissenters, to disaffiliate themselves from associations and speech they abhor.”

Religious or charitable purposes?

The justices are being asked to tackle the question of whether the operations of the social services arm of the Catholic Diocese of Superior in Wisconsin are “religious” or “charitable.” The answer would determine whether Catholic Charities Bureau qualifies for a tax exemption for nonprofit organizations that operate “primarily for religious purposes.”

The Wisconsin Supreme Court has held Catholic Charities’ activities are not “typical” religious activities because it serves and employs non-Catholics, does not “attempt to imbue program participants with the Catholic faith” and its services to the poor and needy also could be provided by secular organizations.

Catholic Charities and its nonprofit sub-entities say because they operate out of the religious motive of the Catholic Church of serving the underserved, their primary purposes are religious. The bureau runs dozens of programs in service to the elderly, the disabled, the poor and those in need of disaster relief, the appeal says.

In New York, the Roman Catholic Diocese of Albany and other religious ministries are challenging the state’s mandate that they subsidize abortions through their employee health insurance plans.

The regulation provides an exemption for religious organizations that have the purpose of inculcating religious values and primarily employ and serve people of the same religious persuasion. But religious organizations that have a broader purpose, such as serving the poor, or that employ or serve members of other faiths or no faith, are not exempt.

COVID-19 vaccine and mask mandates

In Arizona, five former employees of Raytheon Technologies Corp. are seeking to reverse the dismissal of their lawsuit alleging religious discrimination and retaliation in connection with the company’s COVID-19 vaccine or mask mandates.

Four plaintiffs claim they were fired or forced to quit when the company either denied their request for religious accommodation from the mandate or failed to provide workable options. The fifth plaintiff received accommodations for vaccination and testing, but says she was fired over a dispute about the sharing of her medical results.

A judge dismissed the suit, and the 9th Circuit Court of Appeals upheld the dismissal, saying the employees failed to show there were non-religious workers who had declined to comply with the vaccination requirement or with the exemption conditions but who were not subject to adverse consequences.

Other appeals involving COVID-19 were filed by Grace Bible Fellowship, which is challenging Colorado’s authority to impose public health restrictions on houses of worship, and by seven residents of Carlisle, Mass., who challenged since-rescinded mask mandates.

LGBTQ-inclusive storybooks

Other cases with religious freedom implications include a suit by a group of Muslim, Jewish and Christian parents in Montgomery County, Md., who want opt-outs for their children when elementary school teachers read LGBTQ-inclusive storybooks about gender transitions and sexuality.

The parents, who are not challenging the curriculum, argue that compelling the children to participate in instruction that conflicts with the parents’ religious beliefs violates the Free Exercise Clause.

Ads on buses

The Supreme Court has been asked to hear an appeal about a Florida transit agency’s ban on advertising.

Young Israel of Tampa, an Orthodox Jewish synagogue, sought to advertise its annual Hanukkah celebration on public buses run by the Hillsborough Area Regional Transit Authority, but its ad was rejected. The rejection was based on a HART policy banning ads that “primarily promote a religious faith or religious organization.”

In its appeal, Young Israel says HART accepts a wide variety of advertisements, including for secular holiday events, and that its refusal to allow its ad on the buses violates the First Amendment’s prohibition on religious viewpoint discrimination.  …..

Published at United Press International (UPI .com) on October 7, 2024. Reprinted here for educational purposes only. May not be reproduced on other websites without permission.



Background

NOTE:

  • Approximately 7,500 cases are sent to the Supreme Court each year. Out of these, only 80 to 100 are actually accepted by the Supreme Court.
  • As of October 4, 2024, the court has agreed to hear 40 cases during its 2024-2025 term. The court has scheduled 16 cases for argument.
  • Since 2007, SCOTUS has released opinions in 1,250 cases. Of those, it reversed a lower court decision 891 times (71.3 percent) while affirming a lower court decision 347 times (27.8 percent). (from Ballotpedia.org)

On the Supreme Court from a post at the old BensGuide .gpo .gov):

  • Approximately 7,500 cases are sent to the Supreme Court each year. Out of these, only 80 to 100 are actually heard by the Supreme Court. When a case comes to the Supreme Court, several things happen. First, the Justices get together to decide if a case is worthy of being brought before the Court. In other words, does the case really involve Constitutional or federal law? Secondly, a Supreme Court ruling can affect the outcome of hundreds or even thousands of cases in lower courts around the country. Therefore, the Court tries to use this enormous power only when a case presents a pressing constitutional issue. …
  • The Supreme Court convenes, or meets, the first Monday in October. It stays in session usually until late June of the next year. When they are not hearing cases, the Justices do legal research and write opinions. On Fridays, they meet in private (in “conference”) to discuss cases they’ve heard and to vote on them. …
  • Most cases do not start in the Supreme Court. Usually cases are first brought in front of lower (state or federal) courts. Each disputing party is made up of a petitioner and a respondent.
  • Once the lower court makes a decisions, if the losing party does not think that justice was served, s/he may appeal the case, or bring it to a higher court. In the state court system, these higher courts are called appellate courts. In the federal court system, the lower courts are called United States District Courts and the higher courts are called United States Courts of Appeals.
  • If the higher court’s ruling disagrees with the lower court’s ruling, the original decision is overturned. If the higher court’s ruling agrees with the lower court’s decision, then the losing party may ask that the case be taken to the Supreme Court. But … only cases involving federal or Constitutional law are brought to the highest court in the land.

EXPLANATION OF PROCEDURE FOR ORAL ARGUMENTS IN THE SUPREME COURT:
(from supremecourt.gov/visiting/visitorsguidetooralargument.aspx)

  • A case selected for argument usually involves interpretations of the U. S. Constitution or federal law. At least four Justices have selected the case as being of such importance that the Supreme Court must resolve the legal issues.
  • An attorney for each side of a case will have an opportunity to make a presentation to the Court and answer questions posed by the Justices. Prior to the argument each side has submitted a legal brief – a written legal argument outlining each party’s points of law. The Justices have read these briefs prior to argument and are thoroughly familiar with the case, its facts, and the legal positions that each party is advocating.
  • Beginning the first Monday in October, the Court generally hears two one-hour arguments a day, at 10 a.m. and 11 a.m., with occasional afternoon sessions scheduled as necessary. Arguments are held on Mondays, Tuesdays, and Wednesdays in two-week intervals through late April (with longer breaks during December and February). The argument calendars are posted on the Court’s Website under the “Oral Arguments” link. In the recesses between argument sessions, the Justices are busy writing opinions, deciding which cases to hear in the future, and reading the briefs for the next argument session. They grant review in approximately 100 of the more than 10,000 petitions filed with the Court each term. No one knows exactly when a decision will be handed down by the Court in an argued case, nor is there a set time period in which the Justices must reach a decision. However, all cases argued during a term of Court are decided before the summer recess begins, usually by the end of June.
  • During an argument week, the Justices meet in a private conference, closed even to staff, to discuss the cases and to take a preliminary vote on each case. If the Chief Justice is in the majority on a case decision, he decides who will write the opinion. He may decide to write it himself or he may assign that duty to any other Justice in the majority. If the Chief Justice is in the minority, the Justice in the majority who has the most seniority assumes the assignment duty.

On the Role of Judges:
Judges are like umpires in baseball or referees in football or basketball. Their role is to see that the rules of court procedures are followed by both sides. Like the ump, they call ‘em as they see ‘em, according to the facts and law-without regard to which side is popular (no home field advantage), without regard to who is “favored,” without regard for what the spectators want, and without regard to whether the judge agrees with the law. (from the American Bar Asociation)

“The role of a judge is to be a neutral interpreter of already established law, not legislator of new law or social policy.  A judge can have his or her own opinions, even strong ones, and still read the law neutrally.  Fundamentally, judges are expected to not bring their personal politics and philosophies to the bench. Judges are expected to read the law in its clear intent and apply it without regard to result. Changing the law should be left to the people and their legislators.”  Sean Rushton, Committee for Justice Executive Director, from the WashingtonPost.com.

“One of the big confusions in the…Senate fight over the confirmation of judicial nominees is that this is an issue about ‘liberal’ judges versus ‘conservative’ judges.  The vastly more important issue is whether people who go into court should expect their cases to be decided on the basis of the law or on the basis of the particular judge’s own philosophy…Liberals have rooted for judicial activism because this activism has favored liberal causes and liberal views on such issues as abortion, the death penalty, gay marriage, and racial quotas.  But activism can be used by any judge for any purpose.” Thomas Sowell, Hoover Institution

NOTE: …It is crucial…to have a president who understands the judiciary’s proper role. As Ronald Reagan once noted, “[The Founders] knew that the courts, like the Constitution itself, must not be liberal or conservative.” For Reagan and for the Founders, judges were to be selected based on their ability to put political preferences aside and interpret the Constitution and laws based on their original meaning.  Rather than scrutinizing judicial nominees based on their perceived political leanings, [every] president should appoint judges who apply the law regardless of their own policy preferences. (from “Misunderstanding the Role of Judges” by Deborah O’Malley)