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| The panelists and students with the Federalist Society and ACS gathered before the discussion. |
Three of the nation’s top legal experts examined key issues facing the U.S. Supreme Court at USC Gould School of Law’s seventh annual Preview event.
Cases involving religious freedom, threats on Facebook and same-sex marriage were examined at the U.S. Supreme Court Preview by former Assistant Solicitors General Miguel Estrada and Benjamin Horwich, and USC Gould Prof. Rebecca Brown.
Moderated by USC Gould Prof. Sam Erman, the program was co-sponsored by the student chapters of the American Constitution Society and Federalist Society.
The panelists kicked off the evening with a broad discussion of Holt v. Hobbs, a religious liberty case that comes on the heels of another religious rights case involving Hobby Lobby. In the 2014 Hobby Lobby decision, justices ruled that business owners may opt out of the Affordable Care Act’s contraceptive mandate on religious grounds.
In Holt v. Hobbs, Arkansas inmate Gregory Holt sought to grow a beard in prison to exercise a key tenet of his Muslim faith. Prison officials denied his request, saying Holt couldn’t grow a beard due to security risks.
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| The panelists examined cases involving religious freedom, threats on Facebook and same-sex marriage. |
Given the Supreme Court’s disposition in Hobby Lobby, Estrada said the no-beard policy would likely be invalidated due to Holt’s religion. Estrada said the justices could view the Holt case more broadly as a religious accommodation issue.
“Justice Scalia said ‘I would not have enacted this law.’ That really stuck with me,” said Estrada, who is a partner at Gibson, Dunn & Crutcher in Washington, D.C. “I actually think [he meant] something deeper than that - the law doesn’t just cover prisoners. … I think almost all would agree that the government should accommodate religious practices in some way. Kicking the question off to the courts absolves people and their elected representatives of figuring out how they want to approach it. That could be a frustration.”
Brown said the justices may have to consider whether a person’s religious beliefs are “sincerely held and whether they are truly religious, rather than merely philosophical … The Court has loosened up on what it takes to show a substantial burden on religion, and so now, they’re going to have to tighten somewhere else in order to make religious accommodation the exception rather than rule. So, it’s fascinating to watch and we’ll have to see.”
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| USC Gould Prof. Rebecca Brown makes a point |
The panel also discussed a case involving threats on Facebook - an important First Amendment challenge facing the Court. After years of uncertainty, the Court will decide when threats on social media are “true threats” and thus able to be punished despite the First Amendment.
The case, Elonis v. United States, involves Anthony Elonis, who posted chilling threats to kill his wife and others on Facebook, but later claimed they were fodder for rap lyrics. He said they weren’t intended as real threats and are protected under First Amendment speech.
“This is the first time the Court will address threatening statements on social media,” Brown said. “This Court has been very protective of fringe types of speech involving violence and offensiveness, and so, even though Elonis is not a sympathetic figure, the justices will be concerned in this case to make sure people cannot be punished for innocent jokes, art, or hyperbole “
Horwich agreed, saying the Court can’t ignore that this case involves a criminal prosecution. “The Court has given zero weight to any promise of prosecutorial discretion in thinking carefully about bringing these types of cases,” said Horwich, who is of Counsel at Munger, Tolles & Olson. “That makes it particularly hard for the government to win something like this. There won’t be any trust that this tool will be confined to appropriate circumstances.”
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| USC Gould alumni, faculty, students and friends gathered for the 7th annual Supreme Court Previerw. |
The panelists also looked at upcoming issues before the Supreme Court, including its recent denial of review in the marriage equality cases. On Oct. 6, the Court let stand appeals court rulings allowing same-sex marriage in five states, including Indiana, Oklahoma, Utah, Virginia and Wisconsin.
The panelists agreed that if same-sex marriage cases come up next year, the justices may be willing to make a big move.
“It seems to me that the momentum of this is just enormous,” Horwich said. “It seems that this truly is in Justice Kennedy’s hands.”
Added Brown: “I know a little bit about Justice Kennedy, and he deeply values history and cares deeply about liberty … My guess is that Justice Kennedy wants the Court to take up the issue now, so he can issue a decision upholding marriage equality on June 15, 2015, which will be the 800th anniversary of the Magna Carta. So what’s the problem? He has to persuade three others on the Court to grant review, so that he can render his historic opinion.”
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