This morning the Supreme Court issued orders from last week’s conference, adding a new case involving fees in patent cases to its docket. Under federal law, an unsuccessful patent applicant who wants a court to review the denial of his patent by the U.S. Patent and Trademark Office has two options. He can go to the U.S. Court of Appeals for the Federal Circuit, which will review the denial based on the same record that the USPTO used. Or he can go to federal district court, which will let him add new evidence to the record. But if he goes to the district court, he is also required to pay “all the expenses of the proceedings.” Today, the justices agreed to decide in Iancu v. NantKwest whether the phrase “all the expenses of the proceedings” includes expenses for USPTO personnel, including attorneys.
The justices denied review in a pair of cases involving public funds for religious institutions, but Justice Brett Kavanaugh wrote a statement regarding the denial in which he suggested that the Supreme Court should take up the issue in the not-too-distant future. Two years ago, the Supreme Court struck down a Missouri program that barred a church from receiving a grant to install a playground surface made from recycled tires. Because the policy discriminated against the church just because it was a church, the court ruled, it violated the Constitution’s free exercise clause, which bars the government from making any law “prohibiting the free exercise of religion.” In a footnote in that case, Trinity Lutheran Church v. Comer, four justices noted that the court’s opinion only dealt with “playground resurfacing”; the court was not weighing in on other government programs.
But today the justices declined to decide two cases involving the use of historic-preservation grants for houses of worship. The cases arose when Freedom From Religion Foundation, a nonprofit whose website indicates that the group was formed “to promote the constitutional principle of separation of state and church,” filed a lawsuit challenging historic-preservation grants to churches by Morris County, New Jersey. One of the churches that received a grant, the Presbyterian Church in Morristown, is nearly three centuries old.
The New Jersey Supreme Court ruled that the county’s grants to churches violate the state’s constitution, which prohibit state tax funds from going to build or repair churches. And excluding churches from the grant program, it concluded, does not violate the free exercise clause. Last year both Morris County and the Presbyterian Church went to the U.S. Supreme Court, which considered the cases at six consecutive conferences before denying review today.
In a five-page opinion regarding the denial of review that was joined by Justices Samuel Alito and Neil Gorsuch, Kavanaugh suggested that the New Jersey Supreme Court’s ruling was “in serious tension with” the U.S. Supreme Court’s “religious equality precedents.” After cataloguing those cases, Kavanaugh concluded that the “same principle of religious equality applies to governmental benefits or grants programs in which religious organizations or people seek benefits or grants on the same terms as secular organizations or people.” Kavanaugh acknowledged that some cases involving religion can be difficult – for example, when “the government itself is engaging in religious speech” or when “a religious group or person is asking for an accommodation or exemption from a generally applicable law.” But a case like this one, Kavanaugh emphasized, “should not be as difficult: Barring religious organizations because they are religious from a general historic preservation grants program is pure discrimination against religion.”
“At some point,” Kavanaugh continued, the Supreme Court will need to resolve the question presented by the petitions that it denied today. But Kavanaugh agreed with the court’s decision to deny review in these cases, noting that the facts of the Morris County program – and, in particular, “what kinds of buildings can be funded under the Morris County program” – are not clear, which could make it harder to resolve the religious-discrimination claims. Moreover, the Supreme Court’s decision in the Trinity Lutheran case is a relatively recent one, which means that a critical mass of lower courts have not yet weighed in on the question presented in these cases.
Kavanaugh took pains to note that the court’s denial of review does not mean that the justices agree or disagree with the lower court’s ruling. At the same time, he indicated that, in his view, “prohibiting historic preservation grants to religious organizations simply because the organizations are religious would raise serious questions under this Court’s precedents and the Constitution’s fundamental guarantee of equality.”
The justices once again did not act on several high-profile cases that they considered at last week’s conference, including a challenge to an Indiana law that requires fetal remains to be buried or cremated and bars abortion based on (among other things) the sex or disability of the fetus, as well as a group of cases asking the justices to weigh in on whether LGBTQ employees are protected by federal employment-discrimination laws.
The justices’ next conference is scheduled for Friday, March 15.
This post was also published on SCOTUSblog.