The 2021-2022 Supreme Court term begins on October 4, and will return to in-person arguments after a pause during the pandemic. On the docket are cases central to the issues National Council of Jewish Women (NCJW) cares about, including abortion rights, religion-state separation, and gun violence prevention. The term kicks off amid controversy over the Court’s increased use of the ‘shadow docket,’ in which they take cases on an emergency basis without oral arguments and transparency. However, the cases below, which NCJW is watching closely this term, will be on the ‘merits docket,’ where the Court receives full briefings, hears oral arguments, and delivers lengthy, signed opinions. The Court will continue to add cases throughout the term.

Updated March 2022

Religion-State Separation and Religious Liberty 

Carson v. Makin 

If a school administrative unit (SAU) in Maine is too small to establish their own public secondary school, they are allowed to pay the tuition for a student who has been accepted at a public school outside the area or an approved private school which, among other requirements, must be non-sectarian. Two families, including the Carsons, who live in an SAU that does not have its own secondary school have sued to be able to recoup tuition from a religiously-affiliated school attended by their children, claiming that it violates the free exercise clause of the First Amendment. The district court decision, affirmed by the First Circuit Court of Appeals, ruled in favor of the state’s exclusion of religiously affiliated schools from the program. The families appealed, and the question before the Court is whether Maine or any state violates the Constitution’s religion clauses or the equal protection clause by prohibiting students from using generally available student aid at religious or sectarian schools. Last year, the Supreme Court in a 5-4 decision ruled that the Montana state constitution violated the free exercise clause by barring religious schools and students from receiving public funding.  

Oral Argument: December 8, 2021 

Why We’re Watching: NCJW supports the use of public funds for public education only and believes that the separation of religion and state is a constitutional principle that must be preserved and protected to maintain our democratic society. If public funds are allowed to go to religious schools, they may be supporting schools that discriminate against LGBTQ individuals and others.

Decision: On June 21, in a 6-3 decision authored by Chief Justice Roberts, the Supreme Court ruled that the state of Maine must give public funds for private religious schools and, in fact, violated the First Amendment’s free exercise clause by barring state education funding from sectarian schools. Justice Stephen Breyer wrote the broadly worded dissent, joined by Justices Kagan and Sotomayor, pointing out that the Court had never ruled that a “State must (not may) use state funds to pay for religious education” which might be construed as requiring all states to do so. Justice Sotomayor wrote her own strong dissent.

Shurtleff v. Boston 

Although the city of Boston allows private organizations to temporarily raise their flags on one of the flagpoles outside of city hall, they turned down a request from Harold Shurtleff on behalf of Camp Constitution, an event that takes place at city hall, to run his group’s flag. The city contended that flying the flag — a Christian flag that features a Latin cross — would convey an endorsement of a particular religion in violation of the First Amendment’s establishment clause. Camp Constitution sued on the basis that the city’s refusal was a violation of free speech rights. Both the district court and the First Circuit Court of Appeals agreed with the city of Boston. On appeal, the Supreme Court will decide whether the city’s refusal is consistent with the First Amendment’s establishment clause or constitutes censorship of religious views in a public forum.  

Oral Argument: January 18, 2022 

Why We’re Watching: NCJW believes that the separation of religion and state are constitutional principles that must be protected and preserved in order to maintain our democratic society.

Decision: On May 2, 2022 in a 9-0 decision, the Supreme Court ruled that Boston’s flag-raising practice was not government speech and therefore the city’s refusal to fly the Christian group’s flag constituted a violation of the First Amendment’s Free Speech clause. Justice Breyer wrote the opinion with concurring opinions by Justices Alito, Kavanaugh, and Gorsuch. 

Ramirez v. Collier

John Ramirez was sentenced to death in Texas in 2004 for the murder of a store clerk. Ramirez sought an emergency stay because his request to have his pastor put his hands on him and pray aloud as he was executed was denied by Texas. Ramirez appealed to the federal courts and both the district court and Fifth Circuit denied his request. On appeal to the Supreme Court, on its shadow docket on September 8, 2021, his execution was stayed and a full hearing was scheduled by the Court. This case is one of several in recent years involving whether spiritual advisors could be present at executions. This case is different because it involves the nature of the spiritual aid that is allowed. Texas is arguing that, among other things, they are not violating Ramirez’s religion by failing to accommodate all of his religious needs. This case will decide whether the action by Texas violates Ramirez’s free exercise of religion as well as the Religious Land Use and Institutionalized Persons Act (RLUIPA) because, although the state is allowing the pastor to be present in the execution chamber, they are forbidding the pastor from touching Ramirez and praying aloud.  

Oral Argument: November 1, 2021 

Why We’re Watching: NCJW worked to pass RLUIPA and supports religious freedom for incarcerated persons.

Decision: On March 24, 2022, in an 8-1 decision, the Court reversed the Fifth Circuit’s ruling against Ramirez and remanded the case to a lower court, stating that he filed his grievance in a timely manner and was likely to win his case under RLUIPA. Justice Thomas dissented.

Kennedy v. Bremerton School District 

An assistant coach at a public high school in Washington state offered prayers regularly on the fifty-yard line after football games. In 2015, the Bremerton School District took action to stop the practice to protect the religious freedom rights of students in compliance with the First Amendment to the Constitution. This was consistent with past rulings by the Supreme Court and other courts that said that teachers, coaches, and other public school employees could not pressure students into participating in prayer. The district offered the coach other options that would not compel students to participate. The coach ignored the district and made public his intention to pray on the field at the next game, causing the media and others in attendance to rush the field to join—knocking over students in the process. The coach was placed on administrative leave and then chose to leave his job when his contract expired whereupon he sued claiming a violation of his right to pray. Lower courts and the Ninth Circuit ruled repeatedly against the coach. The Supreme Court ageed to hear the case despite the fact that in 2018 it declined to take it.  

Oral Argument: April 25, 2022

Why We’re Watching: NCJW believes that religious liberty and the separation of religion and state are constitutional principles that must be protected and preserved in order to maintain our democratic society.

Decision: On June 27, in a 6-3 decision written by Justice Gorsuch, the Supreme Court rejected the Bremerton School District’s argument. The majority opinion joined in full or part by the Court’s conservatives called the coach’s prayer ‘private speech.’ Further the ruling abandoned the 1971 Lemon test — named for the Lemon v. Kurtzman case — that set up criteria for determining violations of the Establishment Clause, instead, urging courts to look to history and the understanding of the intent of the drafters of the Constitution. The dissent, written by all three liberal justices, chastised Justice Gorsuch for misrepresenting the facts of the case. Justice Sotomayor wrote that the decision, “… elevates one individual’s interest in personal religious exercise, over society’s interest in protecting the separation between church and state, eroding the protections for religious liberty for all.”

Immigrant Rights

Arizona et al v. San Francisco, CA et al 

In 2019, the Trump Administration greatly expanded the definition of a provision of immigration law concerning public charge. For years, that provision had denied green cards or even visas to immigrants who were deemed likely to be primarily dependent on the government as their main source of support in the future. Under the Trump rule, an immigrant who might use public benefits such as SNAP, housing assistance, or the children’s health insurance program became less likely to obtain a visa or permanent status. Several states sued the Trump Administration in opposition to the rule, and the Biden Administration opted not to defend the law when President Biden took office. As a result, an injunction from a federal judge in Illinois blocking the rule nationwide went unchallenged. A group of states led by Arizona has asked the Supreme Court if they could defend the Trump rule in lieu of the federal government. The Ninth Circuit Court of Appeals said that they could not. Now the Supreme Court will hear the case, which focuses only on whether states should be permitted to intervene to defend a rule when the federal government ceases to do so.   

Oral Argument: February 23, 2022 

Why We’re Watching: Similar in nature to the Cameron case explained above, the outcome of this case could allow the states to pursue their goal of keeping the Trump administration’s harmful public charge rule in place.

Decision: On June 15, the Court dismissed the case saying that it was ‘inprovidently granted’ which means  that it should not have been granted in the first place.

Civil Rights

CVS Pharmacy, Inc. v. Doe

CVS Caremark changed their policy to require that all health plan enrollees get specialty medications through in-network specialty pharmacies that provide drugs only by mail or drop shipments. Five individuals living with HIV who get their prescription drugs through employer-sponsored health care at community pharmacies requested to opt-out of the program but were denied. These individuals preferred seeing pharmacists who were familiar with their medical histories and were concerned that the new system would violate their privacy and that drugs sent in the mail could get lost or damaged. They sued, alleging that the CVS Caremark program violates the anti-discrimination provisions of the Affordable Care Act and the Americans with Disabilities Act, as well as California state laws. CVS argued that if they could not use “common cost-containment strategies” that prices would go up and benefits would be reduced for everyone. A federal district court ruled in favor of CVS, but the Ninth Circuit Court of Appeals vacated part and affirmed part of the district court’s ruling. CVS appealed to the Supreme Court which has agreed to hear the case.

Why We’re Watching: NCJW was active in achieving passage of both the Affordable Care Act and the Americans with Disabilities Act and is concerned about any infringements that would weaken those laws.

*Case dismissed by CVS “to pursue policy solutions in collaboration with the disability community to help protect access to affordable health plan programs that apply equally to all members;” case removed from the calendar.