The Year in Preview: The First Amendment Takes Center Stage

Lots of things happened in 2013. President Obama was sworn in for a second term. We got a new pope and a new royal baby. Two bombs went off at the Boston Marathon and frightened a nation. The Supreme Court stripped power from the Defense of Marriage Act and the Voting Rights Act. But these are all stories we've heard before, and if you haven't, you certainly will in the millions of "Year in Review" pieces set to be posted between now and New Year's. Over the next two weeks, our writers will instead preview the year ahead on their beats, letting you know far in advance what the next big story about the environmental movement—or immigration reform, reproductive rights, you get the picture—will be. You're welcome in advance for not making you read a dozen more retrospectives on Ted Cruz and Twerking and fiscal cliffs and shutdowns and selfies. Today, we cover the upcoming year on the Supreme Court docket.

(AP Photo/J. David Ake)

2014 will be an important year for the First Amendment. In three major cases, the Supreme Court will issue rulings with substantial far-reaching impacts. And while the Supreme Court has so far put off hearing cases concerning the recent wave of anti-abortion legislation, two of these cases concern reproductive freedom. Let's go through them one by one:

Free speech and abortion clinic access

One major case the Supreme Court will decide in 2014 is McCullen v. Coakley, which concerns the "buffer zone" law passed by Massachusetts to ensure access to abortion clinics. The Massachusetts law, similar to those passed in other blue states, prevents anyone who is not an abortion-clinic patient or employee from remaining within a 35-foot zone of the entrances and/or exits of reproductive-health clinics. These laws are intended to balance the free-speech rights of anti-abortion protesters with the reproductive rights of women. The laws are potentially justifiable as a "space, time, and manner" restriction of free speech. That is, the state can almost never regulate free speech based on content, but it is allowed in some circumstances to pass content-neutral laws that restrict the circumstances in which people can speak. (I have the right to air my political views; this does not give me the absolute right to air my political views with a bullhorn under your windowsill at 3 a.m.)

In the 2000 case Hill v. Colorado, the Supreme Court upheld a Colorado buffer-zone law as a valid content-neutral restriction of speech. Based largely on Hill, a unanimous panel of judges sitting on the First Circuit Court of Appeals rejected a constitutional challenge to the Massachusetts law. The fact that the Supreme Court took the case, however, suggests that it may be ready to revise or overrule Hill, even though it's a recent precedent. All three dissenters in Hill—Antonin Scalia, Anthony Kennedy, and Clarence Thomas—remain on the Court. On the other hand, two members of the majority coalition—William Rehnquist and Sandra Day O'Connor—have been replaced by John Roberts and Samuel Alito, who are likely to be significantly more receptive to the constitutional challenge.

Overruling Hill would be a mistake. Needless to say, opponents of reproductive freedom have a First Amendment right to air their views, and this includes a right to air their views to women on their way to reproductive-health clinics. But nobody has a right to physically obstruct entrances to clinics or to put physical barriers in front of women seeking health care. There is ample evidence that buffer zones are necessary to protect access.

Unfortunately, the Supreme Court is likely to uphold the challenge to the Massachusetts law.

The rights of religious minorities

As described in detail by the Prospect's Amelia Thomson-DeVeaux, the Court has heard a major freedom of religion case this term. Town of Greece v. Galloway is about whether the frequent official sectarian prayers given at town meetings in a suburb of Rochester violate the Establishment Clause of the First Amendment. The Second Circuit held that the prayers violate the Establishment Clause of the First Amendment. "In practice," the court observed, "Christian clergy members have delivered nearly all of the prayers relevant to this litigation, and have done so at the town's invitation." As a result, the prayers represented a clear public endorsement of religion forbidden by the First Amendment.

Based on the oral arguments, it seems likely the Court will not rule this practice of sectarian prayer unconstitutional. There is a superficially persuasive argument being made on behalf of the town of Greece—by, among others, the Obama administration, which regrettably joined the exclusionary side on this case—that for the Court to determine when prayers become too sectarian would be both impractical and pose dangers to religious freedom itself. This worry is not entirely misplaced. But the problem is that it's a problem of the Court's own making, created when the Court upheld traditional, nonsectarian prayers in legislative sessions. In that 1983 case, Chief Justice Warren Burger asserted that the Court would not "embark on a sensitive evaluation or to parse the content of a particular prayer." As Justice John Paul Stevens acidly noted in dissent, "[p]erhaps it does so because it would be unable to explain away the clearly sectarian content of some of the prayers given by Nebraska's chaplain." This case has the same problem as the Nebraska case, only worse. The Court cannot use the fact that it painted itself into a corner to read the Establishment clause out of the Constitution. It is compelled by current precedent to determine whether religious invocations endorsed by public officials in official settings endorse a particular religious viewpoint. If the Court requires a clear rule, it should be to rule any official religious invocation similar to the one at the Greece Town Hall meetings unconstitutional, not to effectively allow the state to send sectarian messages. Unfortunately, the Court seems to be leaning in the direction of the latter.

The contraceptive mandate

I've written multiple times about the merits of the challenge to the Affordable Care Act's requirement that employer insurance policies cover contraception. In brief, I think the legal arguments range somewhere between "weak" and "frivolous." Alas, this is the Roberts Court, so this is no guarantee that such weak points will fail. What is the most likely outcome?

The good news is that the argument advanced by one of the litigants, Conestoga Wood Specialties, that the mandate violates the free-exercise clause of the First Amendment is unlikely to succeed. Under current precedent, the mandate is plainly constitutional, and this seems an unlikely case for the Court to overrule the relevant precedent. The real danger comes from a statutory argument, the claim that the policy violates the Religious Freedom Restoration Act (RFRA). Here, there are three directions the Court could go:

  • It could, as I would urge it to do, reject the argument entirely.
  • It could, like the D.C. Circuit, reject the challenge as it applies to secular, for-profit corporations but accept it as it applies to the owners of closely held companies.
  • It could, like the Tenth Circuit, accept the challenge as advanced by both corporations and corporate owners.

It seems unlikely that the first position will prevail, given the hostility of the Court to both reproductive freedom and the Affordable Care Act. It's true that Justice Scalia wrote the landmark opinion narrowly construing the free-exercise clause. It's true that he generally prefers balancing tests to be construed as narrowly as possible. But even leaving aside the fact that Scalia hasn't let his previously stated principles stand in the way of attacking the ACA before, upholding the claims under RFRA perversely provides him with an opportunity to show that Congress has created an arbitrary standard allowing the Court to express virtually unconstrained policy judgements. Given the preferences of the Court's majority, it seems like it will choose either the second or third option. If I had to guess, I would say that the Court will accept the D.C. Circuit's judgement that owners but not corporations themselves are entitled to impose their religious views and deny the statutory rights of their employees. But I certainly wouldn't be surprised if the Court accepts the Hobby Lobby's claim of corporate free exercise either.

The news from the Roberts Court is rarely good. And when it comes to reproductive and religious freedom in 2013, the bad news is likely to continue.

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