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Justices issue new orders from last week’s conference; Thomas criticizes same-sex marriage ruling

After adding seven new cases to their docket on Friday, the Supreme Court issued more orders on Monday morning from last week’s “long” conference. The justices called for the views of the federal government in three new cases and set the latest chapter of a long-running water dispute between Florida and Georgia for oral argument “in due course.” They also denied review in over a thousand petitions for review, with one of those denials drawing a sharp three-and-half-page statement from Justice Clarence Thomas criticizing the court’s 2015 decision recognizing a right to same-sex marriage.

Thomas’ statement came in the case of Kim Davis, the Kentucky clerk who refused to issue marriage licenses in the wake of the Supreme Court’s decision in Obergefell v. Hodges because of her religious objections to same-sex marriage. Two same-sex couples who were denied marriage licenses sued Davis under federal civil rights laws, alleging that she had violated their constitutional right to marry. The district court denied Davis’ motion for qualified immunity, and the U.S. Court of Appeals for the 6th Circuit upheld that decision.

Davis went to the Supreme Court, urging the court to “vindicate her qualified immunity defense.” Her case, she contended, “has always been about whether the law forces an ‘all or nothing’ choice between same-sex marriage on the one hand, and religious liberty on the other, with no regard whatsoever for any reasonable accommodation.”

After pushing consideration of Davis’ petition back for several months, the justices denied review on Monday. In a statement regarding the denial that was joined by Justice Samuel Alito, Thomas speculated that although “Davis may have been one of the first victims of this Court’s cavalier treatment of religion in its Obergefell decision,” “she will not be the last.” Davis’ “petition provides a stark reminder of the consequences of Obergefell,” Thomas wrote. “By choosing to privilege a novel constitutional right over the religious liberty interests explicitly protected in the First Amendment, and doing so undemocratically,” Thomas contended, “the Court has created a problem that only it can fix. Until then, Obergefell will continue to have ‘ruinous consequences for religious liberty.’”

Justice Sonia Sotomayor had two statements regarding denials of review in two other cases. The first came in the case of Raminder Kaur, who was convicted of first-degree murder in Maryland. Kaur argued that the state violated her Sixth Amendment right to counsel by allowing her to be tried by prosecutors who had reviewed confidential attorney-client files from her previous trial. In a five-page statement in Kaur’s case, Sotomayor noted (among other things) that “regardless of the reason for their acquisition of Kaur’s privileged information, and regardless of whatever minimum conduct was required of them by the Sixth Amendment, the prosecutors should have recused themselves from participating in Kaur’s second trial as a matter of professional conscience.”

In the case of Warren Henness, a death-row inmate who challenged Ohio’s lethal-injection protocol, Sotomayor explained that she wrote to “address the Sixth Circuit’s novel and unsupported conclusion that pain is constitutionally tolerable so long as it is no worse than the suffering caused by a botched hanging.” The Supreme Court has not, she stressed, indicated that “the pain caused by a faulty hanging creates a constitutional floor for ‘cruel and unusual’ punishment under the Eighth Amendment.”

The justices asked for the federal government’s views in three cases: Montana v. Washington, a dispute between states over Washington’s denial of access to its ports to ship coal from Montana and Wyoming overseas; Hughes v. Northwestern University, involving the requirements for alleging a violation of the Employee Retirement Income Security Act of 1974; and Deutsche Bank Trust Co. v. Robert R. McCormick Foundation, involving whether creditors can rely on state creditor-rights laws after a debtor invokes federal bankruptcy law.

The justices also added a long-running water dispute between Florida and Georgia to their argument calendar for the term. The justices heard oral argument in the dispute in 2018, but they set Florida’s appeal of the latest findings by a special master for oral argument “in due course.”

The justices’ next conference is scheduled for Friday, Oct. 9.

This post was originally published at Howe on the Court.

Recommended Citation: Amy Howe, Justices issue new orders from last week’s conference; Thomas criticizes same-sex marriage ruling, SCOTUSblog (Oct. 5, 2020, 5:40 PM),