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Meeting for the first time since it recessed in June, the Supreme Court convenes in a closed conference Sept. 27 to consider more than 1,900 new cases that have piled up on its doorstep over the summer. Leading the list of cases that might be granted review at the conference are several First Amendment establishment clause disputes involving the religious rights of prison inmates and Ten Commandments displays on public property. The Court will announce in the days following the conference whether it will add the cases to its docket for argument and decision. The Ten Commandments cases may grab the headlines, but the Virginia prison rights case, Bass v. Madison, No. 03-1404, may have a better chance of being granted review by the Court, especially since all the parties, including the U.S. Office of the Solicitor General, are urging the high court to take it up. Bass offers the Court its first chance to rule on the constitutionality of the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA). The law, passed with bipartisan support, and at the urging of religious and civil liberties groups, gave new protections for religious practitioners against government restrictions. It was a successor to the Religious Freedom Restoration Act, struck down by the Court in 1997. One section has aided churches involved in zoning disputes, but the provision at issue before the Court prohibits federally funded programs from burdening the religious exercise of inmates and other institutionalized people without a “compelling governmental interest.” Ira Madison, serving time in Virginia prisons on drug possession charges, sued under the law after prison officials turned down his request to be served kosher food. While the state does provide for serving kosher food to inmates, officials “doubted the sincerity of Madison’s religious beliefs,” according to its brief filed with the Court. Madison said he was a member of a Virginia-based congregation of “Hebrew Israelites,” but the state says he has also professed several other faiths since first being imprisoned in 1991. Judge James Turk of the U.S. District Court for the Western District of Virginia rejected Madison’s claim in 2003 and declared the RLUIPA unconstitutional. Turk reasoned that by elevating the importance of religious freedom over other rights protected by the First Amendment, the law violated the government neutrality toward religion that is required by the establishment clause. Last December, a panel of the U.S. Court of Appeals for the 4th Circuit reversed. “To hold otherwise and find an Establishment Clause violation would severely undermine the ability of our society to accommodate the most basic rights of conscience and belief in neutral yet constructive ways,” wrote Judge J. Harvie Wilkinson III, joined by Judges M. Blane Michael and Allyson Duncan. Virginia appealed to the Supreme Court, asking it to resolve a split among the circuits on the establishment clause issue and, citing federalism grounds, challenging the power of Congress to intrude on state administration of prisons. The petition was filed in April on behalf of Virginia Attorney General Jerry Kilgore by then-State Solicitor William Hurd, who is now of counsel at the Richmond office of Troutman Sanders. Hurd also told the high court that inmates have exploited the law to thwart legitimate anti-gang restrictions involving prison garb and appearance. The circuit split was created by a 6th Circuit ruling that is also before the high court on appeal — Cutter v. Wilkinson, No. 03-9877. In that ruling, which involved religious claims by several Ohio prison inmates, the circuit panel found that the RLUIPA is unconstitutional because of its “message of endorsement” that “has the effect of encouraging prisoners to become religious in order to enjoy greater rights.” The Justice Department, which intervened in the case to defend the constitutionality of the act, also wants the high court to take up Bass v. Madison and is urging the justices to hold Cutter in abeyance until Bass is decided. Inmate Madison has also joined the chorus urging high court review, even though he won in the court below. Madison’s pro bono attorney, Gene Schaerr, a partner at the D.C. office of Sidley Austin Brown & Wood, explains that Madison had both personal and altruistic reasons for acquiescing in the appeal. “He is a public-spirited person who would like to see the law upheld,” says Schaerr. But also, as an incentive to agree to high court review, Schaerr says the state offered to serve Madison kosher meals while the case is pending. Madison, whose sentence runs until 2007, agreed. Schaerr, who often represents religious organizations, testified before Congress in favor of the law before it was passed, and serves as co-chair of the RLUIPA litigation task force along with Elliot Mincberg of People for the American Way. “There is a clear and acknowledged conflict among the circuits, and it is not going to ripen with age,” says Schaerr. “It is also not going to go away.” Separately, four cases involving challenge to Ten Commandments displays on public property are also on the Court’s Sept. 27 agenda, with others to follow at later conferences this fall. Also pending for that conference is a petition filed by ousted Alabama Chief Justice Roy Moore, which also involves his controversial Ten Commandments display but raises a different constitutional issue. Whether or not the Court will want to tackle the hot-button Ten Commandments issue is hard to predict, says George Washington University Law School professor Ira Lupu. “Where they are closely divided on such a charged issue, I think they are going to deny the petitions,” he says. The justices have passed up several chances to consider the issue since its 1980 ruling in Stone v. Graham. In that brief, unsigned 5-4 decision, the high court struck down a Kentucky law that required posting the Ten Commandments in all public school classrooms. Since then, more than two dozen lower courts have ruled in conflicting ways on a range of Ten Commandments displays. “The Supreme Court needs to step in and clarify an increasingly confusing area of the law,” says Jay Sekulow, chief counsel of the American Center for Law and Justice, who has defended Ten Commandments displays against several lawsuits. In the cases before the Court, advocates on both sides are in agreement that the Court needs to resolve substantial and persistent circuit splits on an issue that is unlikely to fade. “Ten Commandments litigation is not just a breezy summer pastime; it represents an ongoing and metastasizing philosophical battle,” says Thomas Fisher, special counsel to Indiana Attorney General Steve Carter, in an amicus curiae brief filed in Van Orden v. Perry, No. 03-1500, one of the cases the Court will decide whether to review. The Indiana brief was joined by the attorneys general of Alabama, Delaware, Florida, Kansas, North Dakota, South Carolina, Utah, and Virginia, all of whom favor allowing the displays. Van Orden challenges a Ten Commandments monument that has stood on the grounds of the Texas state Capitol in Austin since 1961. The six-foot-high granite monument includes several religious and patriotic symbols — including the Star of David — along with what the appeals court described as a “nonsectarian version” of the Ten Commandments. Austin resident Thomas Van Orden sued, claiming the monument violates the First Amendment’s establishment clause. In a unanimous ruling last November by a three-judge panel of the U.S. Court of Appeals for the 5th Circuit, Judge Patrick Higginbotham wrote that the Ten Commandments “have both a religious and secular message,” noting that the Texas Legislature accepted the monument as a gift from the Fraternal Order of Eagles to honor the Boy Scouts of America. “We are not persuaded that a reasonable viewer touring the Capitol and its grounds, informed of its history and its placement, would conclude that the State is endorsing the religious rather than the secular message of the Decalogue,” Higginbotham added. He also found it significant that the monument had gone unchallenged for more than 40 years. “History matters here,” Higginbotham wrote. Judges Edward Prado and Carl Stewart joined the opinion. In his petition to the Court on behalf of Van Orden, Duke University School of Law professor Erwin Chemerinsky said circuit courts are hopelessly divided on the issue, with three circuits allowing Ten Commandments displays to remain, and four finding them unconstitutional. Three cases from the 6th Circuit striking down Ten Commandments displays are also before the Court for consideration Sept. 27. McCreary County, Ky. v. ACLU of Kentucky, No. 03-1693, and Harlan County, Ky. v. ACLU of Kentucky, No. 03-1698, both resulted from lawsuits the American Civil Liberties Union of Kentucky and several Kentucky citizens brought challenging Ten Commandments displays in 1999. The first suit involves displays inside courthouses, while the second case challenges the placement of Ten Commandments plaques on classroom walls. A divided panel of the 6th Circuit found that the displays were unconstitutional in part because of the “blatantly religious” content of the Ten Commandments. In a brief to the high court on behalf of defenders of the Kentucky displays, Mathew Staver of the Florida-based Liberty Counsel said, “The 6th Circuit’s opinion fell into the trap of assuming that the reasonable observer was either ignorant or bent on a mission to eradicate religious symbols.” Also on the Sept. 27 docket is an Ohio case, Johnson v. Baker, No. 03-1661, in which the 6th Circuit struck down high school Ten Commandments displays. In Moore v. Judicial Inquiry Commission of the State of Alabama, No. 04-153, the issue is whether the former Alabama chief justice was unconstitutionally removed from office for placing a Ten Commandments monument in the rotunda of the Alabama State Judicial Building in 2001. After his actions were challenged in federal court, Moore resisted repeated orders to remove the display. Last November, the state Court of the Judiciary, which weighs ethics complaints against judges, ordered Moore removed from office for defying the orders. In his appeal to the Supreme Court, Moore contends the Alabama action amounted to a religious test for holding office, in violation of Article VI of the U.S. Constitution and the free exercise clause of the First Amendment. OTHER CASES UP FOR REVIEW • Andrx Pharmaceuticals Inc. v. Kroger Co., No. 03-779. Whether certain settlements in patent infringement cases constitute violations of the Sherman Act. • Flexible Products Co. v. Ervast, No. 03-1240. Whether ERISA pre-empts a state law claim involving an employee stock ownership program. • Brosseau v. Haugen, No. 03-1261. Qualified immunity for police officer who shot a fleeing felony suspect. • Castellano v. Fragozo, Nos. 03-1269 and 03-1417. Whether a Section 1983 malicious prosecution claim can be brought based on a Fourth Amendment violation. • Rybicki v. United States, No. 03-1375. Whether a fraud statute that criminalizes schemes that deprive others of “honest services” is unconstitutionally vague. • Spector v. Norwegian Cruise Line Ltd., No. 03-1388. Whether Title III of Americans With Disabilities Act applies to foreign-flagged cruise ships in U.S. waters. • Kalama Services Inc. v. Director, Office of Workers’ Compensation Programs, No. 03-1440. Longshore and Harbor Workers’ Compensation Act and the “zone of special danger” test. • McCloy v. Department of Agriculture, No. 03-1485. Interpretation of Horse Protection Act as it relates to entering an injured horse in a horse show. • Moran v. Hibbs, No. 03-1495. State taxation of retirement plan contributions of federal employees. • Payne v. Riley, No. 03-1498. Whether a lawyer’s decision not to a call witness at trial is entitled to less deference in an ineffective assistance case when the counsel did not personally interview the witness. • Bramwell v. Federal Bureau of Prisons, No. 03-1519. Whether a prisoner can sue under the Federal Tort Claims Act for inadvertent destruction of his eyeglasses. • MasterCard International Inc. v. United States, Nos. 03-1532 and 03-1521. Whether loyalty restrictions imposed on banks by credit card companies violate the Sherman Act. • Montana Right to Life Association v. Eddleman, No. 03-1550. Whether certain state limits on campaign contributions violate the First Amendment. • Orff v. United States, No. 03-1566. Whether a farmer’s suit against government for breach of a water supply contract is barred by sovereign immunity. • Hacienda Valley Mobile Estates v. Morgan Hill, Calif., No. 03-1571. Ripeness of a Fifth Amendment takings challenge to rent control ordinance. • Boxer v. Cox, No. 03-1585. Due process rights of terminated government employee. • Locke v. Farrakhan, No. 03-1597. Whether disenfranchisement of felons violates Voting Rights Act. • Mesa, Ariz. v. Petersen, No. 03-1599. Whether warrantless random drug testing of firefighters violates Fourth Amendment. • Rancho Palos Verdes, Calif. v. Abrams, No. 03-1601. Enforcing 1996 Telecommunications Act under Section 1983. • Catholic Charities of Sacramento Inc. v. California, No. 03-1618. Whether state may compel organ of Roman Catholic Church, contrary to its religious teachings, to include contraceptives in prescription drug plan it provides to its employees. • D.C. Board of Elections and Ethics v. Turner, No. 03-1647. Whether federal fee-shifting statutes, which give district courts “discretion” to fashion “reasonable attorney’s fee,” allow district courts to apportion fee award among defendants. • Beckwith Place LP v. General Electric Co., No. 03-1662. Federal jurisdiction in class action settlements. • San Diego, Calif. v. Roe, No. 03-1669. Standards for determining whether off-duty public employee can be punished for sale of sexually explicit video. • ExxonMobil Corp. v. Saudi Basic Industries Corp., No. 03-1696. In oil and gas royalty dispute, whether federal courts have jurisdiction to review pending state actions. • Nordyke v. King, No. 03-1707. Constitutionality under First and Second Amendments of county ordinance barring possession of firearms on county property. • Philip Morris USA Inc. v. Lewis, No. 03-1715. Antitrust suits by indirect purchasers under Robinson Patman Act. • Jones v. Wiley, No. 03-1717. When cause of action under Section 1983 accrues in case of unlawful arrest. • Borowiec v. Gateway 2000 Inc., No. 04-3. Binding arbitration under Magnuson-Moss Warranty Act. • Denny’s Inc. v. Cake, No. 04-6. Anti-Injunction Act and ERISA. • Pacific Properties and Development Corp. v. Disabled Rights Action Committee, No. 04-11. Whether “tester” has standing to enforce anti-discrimination provisions of Fair Housing Act. • Ty Inc. v. Peaceable Planet Inc., No. 04-17. Whether rare personal names can be protected as trademarks under Lanham Act. • Abela v. General Motors Corp., No. 04-20. Arbitration under Magnuson-Moss Warranty Act. • American National Insurance Co. v. Bratcher, No. 04-27. Class action certification in case alleging racial discrimination in sale of insurance. • Clingman v. Beaver, No. 04-37. Whether Oklahoma semi-closed primary, which allows parties to invite independents to vote in primaries, violates First Amendment association rights. • TIG Insurance Co. v. Security Insurance Company of Hartford, No. 04-49. Interplay of state and federal arbitration rules. • Rice v. Collins, No. 04-52. Presumption of correctness for state fact finding in federal habeas appeals. • Martingale LLC v. Louisville, Ky., No. 04-60. Anti-injunction Act and first-filed rules. • Exxon Corp. v. Allapattah Services Inc., No. 04-70. Supplemental jurisdiction in class actions. • Kelo v. New London, Conn., No. 04-108. What defines “public use” in eminent domain cases. • State Farm Mutual Automobile Insurance Co. v. Campbell, No. 04-116. Whether Utah Supreme Court, on remand, directly contravened rule on punitive damages set forth by U.S. Supreme Court in 2003 case of same name. • Graham County Soil & Water Conservation District v. United States ex rel. Wilson, No. 04-169. Statute of limitations under False Claims Act. • C.M.C. v. G.A.L., No. 04-184. Interstate disputes over child custody. This column seeks to identify cases on the Supreme Court’s conference agenda that are leading candidates for Supreme Court review or that raise significant national issues. Thomas Goldstein of Washington, D.C.’s Goldstein & Howe selects these cases from the many petitions filed based on several factors, including whether lower courts have split on the issues presented. He does not otherwise participate in the preparation of this column. Goldstein is a lawyer for the appellant in Spector v. Norwegian Cruise Line Ltd. , No. 03-1388. Legal Times intern Christine Garton contributed to this article.

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