Editor's Note :

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We're currently hosting a symposium on Tuesday's decision in Espinoza v. Montana Department of Revenue. Click to follow along.
We also hosted a symposium on Monday's decision in June Medical Services v. Russo. Click to read the submissions.

Briefly Mentioned :

Briefly Noted :

On Thursday, the court released orders from the July 1 conference. The justices granted five cases for a total of four hours of oral argument next term.
On Monday, we expect the court to release opinions at 10 a.m. We will be live-blogging starting at 9:20 a.m. at this link, where you can sign up for an email reminder when the live blog begins.

Justices grant new cases, send Indiana abortion cases back for a new look

in Box v. Planned Parenthood of Indiana and Kentucky Inc., Federal Republic of Germany v. Philipp, Cargill v. Doe I, Nestlé USA v. Doe I, Republic of Hungary v. Simon, Box v. Planned Parenthood of Indiana and Kentucky Inc., Featured, Cases in the Pipeline on Jul 2, 2020 at 12:48 pm

This morning the Supreme Court issued orders from the justices’ private conference yesterday. The justices granted five new cases, for a total of four additional hours of argument. The biggest news from the order list was the announcement (which I covered in a separate post) that the court will weigh in on whether the Department of Justice must disclose secret materials from Special Counsel Robert Mueller’s investigation to the House Judiciary Committee. The remaining new cases, which are likely to be argued in the fall, all involve issues relating to international law and foreign relations. (more…)

 
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Court will take up dispute over secret materials from Mueller report

in Department of Justice v. House Committee on the Judiciary, Featured, Cases in the Pipeline on Jul 2, 2020 at 10:26 am

This morning the Supreme Court issued orders from the justices’ private conference yesterday. The justices added another high-profile case to their docket for the fall, involving a dispute over efforts by members of Congress to obtain secret materials from the investigation by Special Counsel Robert Mueller. Mueller submitted a report last year to Attorney General William Barr on possible Russian interference in the 2016 election, and Barr released a redacted version of that report in April 2019. In July 2019, the House Judiciary Committee went to federal court in Washington, D.C., seeking an order that would require the disclosure of the redacted portions of the Mueller report, as well as grand jury transcripts and materials that had been kept secret, for use in its impeachment investigation. The committee relied on a provision in a federal rule of criminal procedure that allows a court to authorize the disclosure of grand jury materials that would otherwise be kept secret “in connection with a judicial proceeding.” (more…)

 
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Symposium: What’s “the use” of the Constitution’s distinctive treatment of religion if it is disregarded as discrimination?

in Espinoza v. Montana Department of Revenue, Featured, Symposium on the court's ruling in Espinoza v. Montana Department of Revenue on Jul 2, 2020 at 10:14 am

Holly Hollman is general counsel for the Baptist Joint Committee for Religious Liberty, which submitted an amicus brief in support of the respondents in Espinoza v. Montana Department of Revenue. 

The Supreme Court’s decision in Espinoza  v. Montana Department of Revenue purports to be “unremarkable,” particularly in light of Trinity Lutheran v. Comer, decided just three years ago. But the multiple opinions – four for the majority and three dissenting opinions – belie that assertion and demonstrate the significance of this case. In short, the Espinoza decision continues a disturbing trend that devalues a core aspect of our religious liberty tradition – the ban on government aid to religion.

By a vote of 5-4, the Supreme Court held that the free exercise clause prohibits Montana from applying its state constitution to avoid funding religious schools through a tax credit program. Montana’s constitution, like a majority of state constitutions, prevents government funding of religion by restricting aid to religious institutions. Typically, such state constitutional provisions are written with more specificity and can be interpreted as more stringent protections for religious liberty than the federal constitution. As Steven Green, the country’s leading legal historian on religious liberty and state constitutions, explains elsewhere in this symposium, the no-aid principle is expressed in a variety of state constitutional provisions.

(more…)

 
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Thursday round-up

in Round-up on Jul 2, 2020 at 6:42 am

Court-watchers are focusing on Espinoza v. Montana Department of Revenue, in which the court held on Tuesday that Montana’s exclusion of religious schools from a state-funded scholarship program for private schools violates the First Amendment. At Reason’s Volokh Conspiracy blog, Ilya Somin finds it “unfortunate” that the decision was “a close 5-4 ruling, split along ideological lines with the five conservative justices in the majority, and the four liberals all dissenting,” because “[s]triking down blatant government discrimination on the basis of religion should not be so controversial and divisive.” At National Review, Dan McLaughlin observes that “the case also likely marks a long-overdue death blow to openly anti-Catholic Blaine amendments adopted by many states in the 1870s and 1880s and defended by anti-religious progressives and public-school teachers’ unions to this day.”  In an op-ed for The Washington Post (subscription required), Adam Laats argues that the historical analysis in Espinoza ignores “the basic provision enshrined long before the 1870s: American public education should use tax dollars to teach children how to read, write and become better citizens, not to teach them any religious ideas.”

(more…)

 
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Symposium: Espinoza, funding of religious service providers, and religious freedom

in Espinoza v. Montana Department of Revenue, Featured, Symposium on the court's ruling in Espinoza v. Montana Department of Revenue on Jul 1, 2020 at 6:22 pm

Thomas Berg is the James L. Oberstar Professor of Law and Public Policy at the University of St. Thomas (Minnesota). Douglas Laycock is the Robert E. Scott Distinguished Professor of Law at the University of Virginia. They filed an amicus brief on behalf of a number of religious and school groups in support of the petitioners in Espinoza v. Montana Department of Revenue.

Tuesday’s ruling in Espinoza v. Montana Department of Revenue came as no surprise. The Montana Supreme Court had invalidated a state tax credit for donations to organizations supporting students in private schools, solely on the ground that some schools benefiting from the program would be religious. The state court relied for its authority on a state constitutional provision that singled out religious schools for exclusion from generally available funding, however indirect. The U.S. Supreme Court held that this discrimination against religious schools and families who choose them violated the First Amendment’s free exercise clause.

Espinoza continues the court’s strong trend upholding, and now even mandating, equal access to government benefits for religious, as well as secular, service providers. We write to explore what Espinoza suggests for future disputes over funding of religious service providers, and for other questions about the religion clauses. (more…)

 
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Symposium: What “play in the joints” remains after Espinoza?

in Espinoza v. Montana Department of Revenue, Featured, Symposium on the court's ruling in Espinoza v. Montana Department of Revenue on Jul 1, 2020 at 12:49 pm

Grant T. Sullivan is an assistant solicitor general with the Colorado Attorney General’s office, which filed an amicus brief on behalf of nine states in support of respondents in Espinoza v. Montana Department of Revenue. The views expressed in this post are solely those of the author and should not be imputed in whole or in part to any other state or state official unless expressly endorsed by an authorized representative of the state.

For state policymakers, crafting sound (and constitutional) education funding policies that support some level of parental choice at private schools—whether religious or secular—has always been challenging. Take too heavy a hand in providing state funds to religious schools and the state may encroach on the establishment clause. But fail to treat religious schools similarly in the state’s funding programs and the state may run afoul of the free exercise clause.

This tension has long been recognized in the Supreme Court’s decisions addressing the interplay between the competing religion clauses. To counteract that tension, the court has historically granted some deference to state decisionmakers in striking this delicate balance. States are afforded “play in the joints,” the court has explained, between the establishment clause’s and the free exercise clause’s competing principles.

(more…)

 
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Symposium: How to count to one

in June Medical Services LLC v. Russo, Russo v. June Medical Services LLC, Featured, Symposium on the court's ruling in June Medical Services v. Russo on Jul 1, 2020 at 12:13 pm

John Knepper is a private attorney based in Cheyenne, Wyoming. He previously was chief deputy attorney general of Wyoming. He filed an amicus brief on behalf of the Susan B. Anthony List in support of the respondent in June Medical Services v. Russo.

Marks v. United States instructs that when a majority of the justices cannot agree on more than the outcome, “the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.” Much of the immediate analysis of June Medical Services v. Russo has therefore focused on Chief Justice John Roberts’ concurring opinion. Indeed, the chief’s concurrence makes it difficult not to consider the effect of his opinion: He cites Marks in a footnote when discussing Planned Parenthood v. Casey.

The chief justice is not the most important jurist in this case, however. That honor goes to the district court judge in the Middle District of Louisiana. Both Justice Stephen Breyer, writing for a four-justice plurality, and the chief defer to the district judge’s findings of fact as dispositive. That judge’s view of the world-as-it-exists can be challenged only when “clearly erroneous.” And according to the five justices who voted to strike down Louisiana’s abortion law, the mistake made by the U.S. Court of Appeals for the 5th Circuit was a lack of proper respect for the district court’s findings of fact. (more…)

 
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Symposium: Clarity in an era of confusion — The Supreme Court will not tolerate hostility to religion

in Espinoza v. Montana Department of Revenue, Featured, Symposium on the court's ruling in Espinoza v. Montana Department of Revenue on Jul 1, 2020 at 10:38 am

Mithun Mansinghani serves as solicitor general for the state of Oklahoma. Bryan Cleveland and Zach West, assistant solicitors general, also contributed to this article. The state of Oklahoma, through Attorney General Mike Hunter, led an 18-state amicus brief  in support of the petitioners in Espinoza v. Montana Department of Revenue.

On one level, the Supreme Court’s decision in Espinoza v. Montana Department of Revenue is entirely unsurprising—a straightforward application of precedent, both longstanding and recent. At the same time, it introduces something all too rare in recent court decisions and in the field of religious liberty in particular: clarity. Yesterday’s decision articulates an unmistakable rule of law: When the government creates a benefit program, it cannot seek to exclude persons and institutions of faith merely because they are religious.

At issue in Espinoza was a Montana tax credit for donations to scholarship programs assisting students with tuition in private schools. The Montana Supreme Court threw out the tax credit based on the state constitution’s “no-aid” provision or “Blaine Amendment,” which prohibits even indirect aid to “sectarian” schools. Montana’s tax credit program violated this state law, the state court held, because the scholarships were available for use at both religious and nonreligious private schools. In other words, Montana’s neutral and generally applicable program was struck down because a state law required discrimination against religious schools, students and their parents.

(more…)

 
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Wednesday round-up

in Round-up on Jul 1, 2020 at 7:01 am

Yesterday the court issued two opinions, whittling its remaining cases down to eight. In Espinoza v. Montana Department of Revenue, the court held 5-4 that Montana’s exclusion of religious schools from a state-funded scholarship program for private schools violates the First Amendment. Amy Howe analyzes the opinion for this blog, in a post that first appeared at Howe on the Court. Mariam Marshedi has an analysis at Subscript Law. At NPR, Nina Totenberg and Brian Naylor report that “[t]he court’s decision is the latest in a series of recent rulings that have lowered the traditional wall separating church and state by requiring government entities to treat religious and nonreligious institutions more equally, even when that means sending public money to religious institutions.” At Fox News, Ronn Blitzer and others report that Chief Justice John “Roberts once again served as the swing vote in a 5-4 decision[; t]his time, he joined his fellow justices in the conservative wing of the court.” Mark Walsh reports at Education Week that “[t]he chief justice’s opinion appeared to cast doubt on provisions in as many as 30 state constitutions that bar aid to religious schools.” Additional coverage comes from Kevin Daley at The Washington Free Beacon.

(more…)

 
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Opinion analysis: Court holds that “generic.com” marks may be registered trademarks or service marks when consumers do not perceive them as generic

in U.S. Patent and Trademark Office v. Booking.com B.V., Featured, Merits Cases on Jun 30, 2020 at 6:32 pm

When the digital travel company Booking.com sought to register its domain name as a service mark for hotel reservation services, the U.S. Patent and Trademark office denied registration under a longstanding policy that the combination of a generic term for goods and services with the “.com” suffix did not create a protectable trademark. Booking.com sought review of the PTO’s decision in federal district court, and introduced survey evidence supporting an inference that 74 percent of consumers recognized “Booking.com” as a brand name. The district court concluded that even though the word “booking” is an unprotectable generic term, combining that term with “.com” transformed it from an unprotectable generic term into a descriptive term that could be protected once it had acquired secondary meaning, and the survey evidence demonstrated that it had. The U.S. Court of Appeals for the 4th Circuit affirmed, and today the Supreme Court affirmed the 4th Circuit by a vote of 8-1 in U.S. Patent and Trademark Office v. Booking.com.

(more…)

 
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