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Conference Call summarizes the roughly 15 percent of all nonpauper petitions that are the most likely candidates for certiorari. It is prepared by the law firms Akin Gump Strauss Hauer & Feld and Howe & Russell, which together publish the Supreme Court weblog. Tom Goldstein, who is the head of Supreme Court litigation for Akin Gump, selects the petitions from the docket of nonpauper petitions. The firms then prepare the summaries of the cases. If either firm is involved in a case mentioned in this column, that will be disclosed.
As a self-described evangelical Christian, Linda LeBoon never comfortably fit in during the four years she worked as a bookkeeper for the Jewish Community Center in Lancaster, Pa. Soon after her hiring, the former executive director reportedly ordered her to remove a religious psalm from her computer screen saver. Years later, she clashed with a subsequent director over efforts to counter groups that seek to convert Jews to Christianity. And in mid-2002, she alleges she was fired after JCC officials learned she attended a “Jews for Jesus” concert at her local church. LeBoon promptly filed suit in the U.S. District Court for the Eastern District of Pennsylvania alleging she was fired on account of her religion. In response, the JCC claimed it eliminated LeBoon’s position due to financial difficulties. Before reaching the merits of the suit, however, a magistrate judge and appellate panel both found that as a “religious organization,” the JCC was wholly exempt from the federal law barring religious discrimination in the workplace. On April 18, in a case with potential ramifications for other quasi-religious employers around the country, the Supreme Court will consider whether to grant LeBoon’s petition for certiorari. (The petition is No. 07-943, LeBoon v. Lancaster Jewish Community Association.) Under Title VII of the Civil Rights Act of 1964, the law under which LeBoon brought suit, covered employers are forbidden from discriminating against workers because of race, color, religion, sex, or national origin. To ensure religious-based employers were not required to hire employees of other faiths, however, Congress provided an exemption for any “religious corporation, association, educational institution, or society.” Formerly known as the Young Men’s Hebrew Association, the first JCC opened in Baltimore in 1854 to help Jewish immigrants assimilate to U.S. society. Today, they serve as cultural and recreational centers in more than 300 North American cities, offering services — to Jews and non-Jews alike — ranging from athletic facilities to classes on Israeli culture. Finding the Lancaster JCC’s “structure and purpose were primarily religious,” a split panel of the U.S. Court of Appeals for the 3rd Circuit in September 2007 held the center qualified for Title VII’s religious exemption. Writing for the majority, Senior Judge Jane Roth concluded that “Jewish religious belief played a significant role in the life of the JCC,” noting, among other examples, that the center tied its social calendar to Jewish holidays, attempted to keep a kosher kitchen, published a newspaper called the Lancaster Jewish News, and placed a mezuzah — a traditional Jewish religious article — on the doorjamb of its social hall. From a financial standpoint, the panel noted, the JCC received roughly 16 percent of its budget from the local Jewish federation and used Hebrew words to distinguish donor levels among private benefactors. Rejecting LeBoon’s arguments, Roth wrote that religious employers do not lose their exemption by engaging in secular activities or hiring employees of other faiths, and noted that the director who fired LeBoon was herself later let go for not having the confidence of local synagogue leaders. In dissent, Judge Marjorie Rendell wrote that Congress intended the religious organization exemption to cover only entities “funded or controlled by a religious group,” citing legislative history indicating the exemption would apply only to employers wholly owned or supported by religious orders. In her petition for certiorari — filed by J. Michael Considine Jr. of West Chester, Pa. — LeBoon contends the 3rd Circuit’s ruling departs from both the intent of Congress and standards applied by other circuits. Heavily echoing the dissent, Considine argues the legislative history of Title VII suggests Congress intended the religious exemption only for employers that religious groups wholly fund or control. The petition points in particular to two comments on the floor of the House stating a wholly church-owned orphanage would “unquestionably” be exempt from Title VII’s discrimination provisions. Considine maintains Roth’s approach conflicts with that of an earlier 3rd Circuit case, as well as opinions from the 4th, 9th, and 11th circuits that require employers to be at least partially owned by a church to qualify for the religious organization exemption. Questioning the 3rd Circuit’s factual conclusions, Considine notes the JCC offered programs to Jews and gentiles alike, hired employees who were overwhelmingly gentile, frequently rented meeting space to non-Jewish organizations, and served nonkosher food — including ham — on some occasions. Opposing certiorari, the Lancaster JCC downplays the importance of congressional history and contends the 3rd Circuit employed the same standard as other courts of appeal — whether the organization’s “structure and purpose were primarily religious” — in analyzing Title VII’s religious exemption. Characterizing the legislative history as “murky,” the brief in opposition — filed by Daniel Brennan of Susanin, Widman & Brennan in King of Prussia, Pa. — maintains the congressional floor comments cited do not necessarily indicate the intent of Congress as a whole, and in any event came up in a discussion over a separate provision of Title VII. Brennan further suggests the petitioner’s own test — whether an organization is funded or controlled by a church — unnecessarily risks state entanglement with religion. — Ben Winograd
Other cases up for review include the following: • 07-803, Thacker v. Federal Communications Commission, et al. (9th Circuit) Whether a former licensee is entitled to surplus money recovered by the Federal Communications Commission after its license was cancelled and then re-auctioned. • 07-952, Denton v. Hyman (2nd Circuit) Whether a state court judgment holding a corporate fiduciary liable for misappropriation of corporate assets is dischargeable in bankruptcy. • 07-956, Biomedical Patent Management Corp. v. California Dept. of Health Services (Federal Circuit) Whether a state that has sought to enforce its own patent rights in federal court waives its sovereign immunity against allegations of patent infringement. • 07-1055, Exxon Mobil v. Grefer (4th Circuit Court of Appeal of Louisiana) Whether, if a punitive damage award is found to have rested on improper considerations, a court may remedy the error by allowing the maximum amount of damages due process allows. • 07-1059, -1078, United States v. Eurodif S.A.; USEC Inc., et al. v. Eurodif S.A. (Federal Circuit) Whether contracts for uranium enrichment services are subject to federal anti-dumping laws.

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