Justices to Hear Social Issue Cases

The latest battles in the culture war will be fought at the Supreme Court, starting today.

The justices will meet this morning for the first time after their holiday recess to consider a highly charged set of appeals, including whether the Boy Scouts can exclude openly gay individuals and whether states can outlaw “partial-birth” abortions.

The court is expected to announce later today its decision on hearing several of these new cases.

Next week, the justices will hear arguments in an important women’s rights case testing whether battered spouses and rape victims can sue their assailants in federal court.

A Virginia Tech freshman who says she was raped by two football players sued them under the Violence Against Women Act. But a U.S. Court of Appeals dismissed her claim and struck down the law as unconstitutional. The case (Brzonkala vs. Morrison, 99-29) will be heard Tuesday.

On Jan. 19, the court will consider picketing at abortion clinics. Colorado is defending a law that shields patients from persistent protesters. Anti-abortion activists say that they have a free-speech right to confront the women on the sidewalks.

And in March, the school prayer issue will return to the court. Christian students at a Texas high school say that they should be permitted to lead prayers at school events, such as football games and graduations.

“All the cases raising the most divisive social issues seem to be knocking on the door of the court all at the same time,” said Elliot Mincberg, legal director of the liberal group People for the American Way.

Jay Alan Sekulow, counsel for the American Center for Law and Justice, agrees. “This is shaping up as quite a term, the most interesting in many years. It has everything from abortion protests to gay and lesbian issues, church-state disputes, school prayer and maybe ‘partial-birth’ abortion too.”

Sekulow, whose legal group was founded by the Rev. Pat Robertson, is already set to argue two cases. He will represent the abortion protesters in the Colorado case and the Christian students in the Texas prayer case.

He also filed a brief urging the court to hear the Boy Scouts’ appeal, which is likely to be acted upon within a few days.

The California courts have sided with the Scouts and rejected discrimination complaints from gay men. In a 1998 decision, the state Supreme Court said that the Scouts are a “social organization,” not a business group, and therefore are not covered by California’s anti-bias law.

However, the New Jersey Supreme Court last August took the opposite view. It ruled that the Scouts are covered by a state law forbidding discrimination based on race, gender, religion and sexual orientation.

The issue arose when James Dale, an Eagle Scout and a 20-year-old adult scoutmaster, was kicked out after he revealed in a newspaper story that he is gay. The state law forbids discrimination in “places of public accommodation,” such as hotels and restaurants. In their opinion, the state judges said, the Boy Scouts are covered because the organization is open to the public.

In a tone of anger and outrage, the Boy Scouts of America appealed to the Supreme Court, arguing that the forced inclusion of gays violates the 1st Amendment rights of the Scouts because it conflicts with the Scouts’ message that boys should be “morally straight.”

“It is an outlandish reading of the [state] law,” said George A. Davidson, a New York attorney who represents the Scouts. “I’m confident they [the justices] will grant” the appeal in the case (Boy Scouts of America vs. Dale, 99-699).

Disagreeing, Evan Wolfson, a lawyer for the Lambda Legal Defense Fund in New York, said that the free-speech claim is weak. There is no “1st Amendment license to discriminate,” he said.

The high court almost surely will take up the issue of “partial-birth” abortions soon. The only uncertainty is whether a ruling will come in this term, which will end by July, or in the next term, which begins in October.

Since 1995, 30 states have enacted laws banning this procedure that a few doctors use for late-term abortions. The courts are split on the constitutionality of the bans.

The U.S. 8th Circuit Court of Appeals in St. Louis struck down such laws in Nebraska, Iowa and Arkansas, while the U.S. 7th Circuit Court of Appeals in Chicago upheld similar measures in Wisconsin and Illinois.

Don Stenberg, Nebraska’s attorney general, appealed in November, arguing that this “particularly hideous procedure” should be outlawed. Ten other states have urged the justices to take up the case (Stenberg vs. Dr. Leroy Carhart, 99-830).

Simon Heller, litigation director for the Center for Reproductive Law and Policy in New York, also wants the justices to take up the case, even though he won in the lower court.

“It would make sense for them to take this case and resolve the issue once and for all,” he said. “It would be ideal if they did it quickly and decisively.”

If the justices agree in the next two weeks to hear the Nebraska case, it likely will be argued in April and decided by July. If not, the case will be heard in the fall.