RACHEL MARTIN: At the Supreme Court today, a big decision not to decide. The court has declined to review cases from lower appeals courts that had overturned the bans on gay marriage in five states. In practical effect, this means those bans are gone as of today. And bans in other states will likely be overturned as well. It was a stunning refusal issued without comment on the courtâs first day of official business for the new term. And it is likely to mark a watershed in the status of gay marriage in America. NPRâs legal affairs correspondent Nina Totenberg has a look at this story and at other cases before the court in the new term.
NINA TOTENBERG, BYLINE: The court without comment simply said it would not hear any other the seven appeals from five states that are pending before the court. In each of these, the lower federal appeals court struck down state bans on gay marriage. The consequence of todayâs decision not to decide is that same-sex couples will now be able to marry in 12 more states, which brings the number to 31 states where gay marriage is legal. It is possible of course that some other appeals court could uphold a gay marriage ban sometime this year. But then the court might decide to step in and resolve the conflict with the other courts. In the meantime however, tens of thousands of gay couples would have married, and itâs hard to image the court then just invalidating those marriages. So the decision not to decide sends a powerful signal to the lower courts. Starting off with a bang, this will be John Roberts tenth term as chief justice. Thereâs no doubt that since his appointment and that of Justice Samuel Alito in 2005, the court, with the exception of gay rights, has grown dramatically more conservative. But as Brianne Gorod of the Constitutional Accountability Center observesâ¦
BRIANNE GOROD: The question is, what role has John Roberts played in this movement? Is he strategically and deliberately leading the court to the right? Or is it, as some have suggested, the Kennedy Court or even the Alito Court?
TOTENBERG: The issues on the docket this year range from race and religion to pregnancy discrimination and even threats on Facebook. But once again, as it did in the campaign-finance area, the court is delving into election issues previously thought long-settled. In a case from Arizona, the court could prevent the increasing use of citizen commissions to draw congressional district lines. Arizona, California and some other states have, in one way or another, used such commissions to take the politics out of redistricting and out of the hands of self-interested state legislators. But in Arizona, where the independent commission was enacted by referendum, the Republican-controlled legislature is now challenging the practice as unconstitutional.
In another case, this one involving judicial elections, the court could dramatically alter restrictions in most states. The court will decide whether states that elect judges can bar judicial candidates from directly seeking campaign contributions. Of the 39 states that have judicial elections, 30 have such bans. They maintain that allowing judicial candidates to personally solicit campaign money would raise questions about their impartiality on the bench. Those challenging the ban say it violates their free speech rights.
Another free-speech case involves the question of what constitutes a threat on Facebook. The facts are pretty hairy. Anthony Elonis was convicted of making threats against his estranged wife and an FBI agent. His language was explicit, things like I'm not going to rest until your body is a mess, soaked in blood. Soon he moved on to suggest he might make a name for himself with a school shooting. That prompted a visit from a female FBI agent, whereupon Elonis put up on Facebook a post saying that he had to control himself not to, quote, "slit her throat, leave her bleeding from her jugular in the arms of her partner." At Elonis' trial, the judge instructed the jurors that to convict they had to conclude that this was not mere exaggeration, rather that a reasonable person would interpret statements as a serious expression of an intention to intimidate or inflict bodily harm. Elonis contends that he was only mimicking rap songs - indeed, he linked to some of those songs - and that he should not have been convicted without proof of actual intent to threaten, intimidate or harm. An intent standard might make it much more difficult to win a conviction for making illegal threats. Indeed, most court observers seem to believe that in the context of social media these days, Elonis may win, University of North Carolina law professor William Marshall.
WILLIAM MARSHALL: The context of rap music these days suggest that what Elonis put out there really isn't all that unusual for what's going on on Facebook and what's going on in popular culture.
TOTENBERG: After all, this court has already upheld a fair amount of fringe speech, whether it's crush videos, demonstrations at military funerals or the sale of violent video games to kids. Not everyone, however, agrees that the Facebook threat case is in the same category. Former Solicitor General Gregory Garre notes that Elonis' posts ticked off all the boxes - domestic violence, school shootings and violence against a federal officer.
GREGORY GARRE: I wouldn't be surprised if they struck the justices as very problematic.
TOTENBERG: There are two interesting religion cases. One tests whether retailer Abercrombie and Fitch illegally discriminated against a Muslim woman, who was denied a job because her headscarf conflicted with the company's dress code. Another case tests whether Arkansas may refuse to allow a Muslim prisoner's religious request to wear a short beard. The prisoner sued under a federal law aimed at shoring up prisoners' religious rights. Interestingly, he has the backing of a wide variety of corrections officials and organizations, plus the federal government. Forty-three states and the federal prison system allow beards, largely because it's much easier to hide weapons and other contraband in clothes, hair and body cavities.
There's a similar strange bedfellows coalition in the pregnancy discrimination case before the court. Anti-abortion and women's rights groups have joined together to urge the court to require employers to treat pregnancy the same way other temporary disabilities are treated on the job. In this case, a UPS driver asked for light duty, carrying less than 20 pounds, during her pregnancy. But the company refused, and she lost her job and insurance coverage. The company contends that it had, quote, "no animus" towards the employee because of her pregnancy, that her light-duty request was simply not covered, either by the provisions of federal disability law or the union contract. She contends that she should've been covered under the 1978 federal law barring discrimination based on pregnancy. The case is important to business because pregnancy accommodations cost money. Conversely, as Emily Martin of the National Women's Law Center observes, it's very important to women.
EMILY MARTIN: Lots of women with some sort of work limitation arising out of pregnancy face similar issues - especially women in low-wage jobs that are often more physically demanding.
TOTENBERG: These are just a few of the cases the Supreme Court will be tackling this term. There are also cases involving racial gerrymandering, Medicaid funding and a major housing discrimination case that could make discrimination harder to prove. There's even a fish case - yes, fish. It's an obstruction of justice case that, depending on your point of view, involves either deliberate concealment of illegal fishing or a classic example of prosecutorial overreach; more to come on that one later. Nina Totenberg, NPR News, Washington.
MARTIN: This is NPR News.
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