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Supreme Court to Rule on Travel Ban

On its last opinion day of the term, the Supreme Court announced that it would rule on the constitutionality of the Trump administration’s revised travel ban. In the meantime, to the extent the executive order prevents foreign nationals and refugees “who lack any bona fide relationship with a person or entity in the United States” from entering the United States, it may go into effect until the Supreme Court rules on the merits of this case.

The president’s first executive order prevented people from seven predominantly Muslim countries from entering the United States for 90 days, froze decisions on refugee applications for 120 days, and capped total refugee admissions at 50,000 for fiscal year 2017.

The Ninth Circuit temporarily struck it down, concluding this executive order was not religion-neutral, and that it likely violated the due process rights of lawful permanent residents, nonimmigrant visa holders, and refugees.

The president’s second executive order prevents people from six predominately Muslim countries from entering the United States for 90 days, but only applies to new visa applicants and allows for case-by-case waivers, and contains the same provisions regarding refugees as the original travel ban.

The Fourth Circuit concluded the revised travel ban likely violates the Establishment Clause, noting that its “text speaks with vague words of national security but in context drips with religious intolerance, animus and discrimination.” It temporarily prevented the portion of the executive order regarding admission to the United States for 90 days from going into effect.

The Ninth Circuit concluded that the revised travel ban likely exceeds the power granted to the President by Congress in the Immigration and Nationality Act. It temporarily prevented all of the provisions mentioned above from going into effect, including those affecting refugees. Continue reading

 

Travel Ban Headed to the Supreme Court?

The Department of Justice (DOJ) has filed a brief asking the Supreme Court to review the Fourth Circuit’s recent decision temporarily preventing the President’s revised travel ban from going into effect. Numerous states supported both side as amici in the litigation. Numerous local governments supported the challengers.

 The President’s first executive order prevented people from seven predominately Muslim countries from entering the United States for 90 days. The Ninth Circuit temporarily struck it down concluding it likely violated the due process rights of lawful permanent residents, non-immigrant visa holders, and refugees.

 The President’s second executive order prevents people from six predominately Muslim countries from entering the United States for 90 days but only applies to new visa applicants and allows for case-by-case waivers.  Continue reading

 

This Case is Not (Only) About Paving Poor Preschool Playgrounds

In fact at this point Trinity Lutheran Church of Columbia v. Pauley may be more about post-purchase depression than anything else. This case involves religion; a topic the Roberts Court has mostly shied away from even when it had the benefit of nine Justices. But the Court agreed to hear it before Justice Scalia died.

There are two ways of looking at this case, both of which are hard to argue with: state aid to religious organizations means less money for secular causes, and all preschool students should have access to safe playgrounds no matter where they go to school. Continue reading

 

Monday Morning Review: Local Governments in the Federal Appellate Courts

Here are last week’s published decisions involving local governments:court collumn

First Circuit

  • Town of Johnston v. Fed. Housing Finance Agency, No. 13-2034 (Aug. 27, 2014): The court affirmed the dismissal of the municipalities’ claim that Fannie Mae and Freddie Mac failed to pay taxes on property transfers; the court found that statutory exemptions from taxation applied. As the court put it: “Six other circuits have recently considered this attempt to shoe-horn a transfer tax into a real property tax, and they have unanimously rejected the argument.”

Second Circuit

Third Circuit Continue reading

 

Monday Morning Review: Local Governments in the Federal Appellate Courts

Here are last week’s published decisions involving local governments:SCT pillars

First Circuit

Snyder v. Gaudet, No. 12-1422 (June 25, 2014) (In 42 U.S.C. 1983 action alleging violation of equal protection because city applied zoning restriction differently to Snyder than to prior owner, granting qualified immunity to defendants because right was not clearly established): Continue reading

 

Third Circuit: Establishment-Clause Challenge To Existing Display Not Time-Barred

Bible Baptist Church Welcomes You!  1 Block –>

So reads the sign—decorated with a gold cross and white Bible—that the Borough of Shickshinny, Pennsylvania, allowed to be placed on its right-of-way.church-state

A nearby resident, Francene Tearpock-Martini, objected. She sued the Borough under 42 U.S.C. § 1983, alleging that the sign violates the Establishment Clause.

Tearpock-Martini’s lawsuit had a problem though.

Tearpock-Martini had commenced the suit more than two years after the church sign was installed. Under Pennsylvania law, tort actions generally must be brought within two years. And 1983 actions often borrow the statute of limitations from state law.

Is her suit time-barred? In a decision this week, the Third Circuit said that it is not: Continue reading

 

Roadmap for Constitutional Prayer at City Council Meetings

Justice Kennedy is better known for his rhetorical flair than his practical guidance.church-state  But his majority opinion in Town of Greece v. Galloway provides a roadmap local governments can follow to stay out of trouble when beginning city council meetings with a prayer.

Town of Greece resolves two issues:  whether prayers must be nonsectarian and whether prayers before city council meetings are coercive.

The Court concludes that sectarian prayers that overtly refer to a specific faith are okay—to a point.  Sectarian prayers can go too far Continue reading

 

Round-up of Greece Analysis

In our earlier post, we reported the Supreme Court’s decision in Greece v. Galloway, 8468059167_e8ebfeedbf_zruling that the Town’s prayer practice is not an unconstitutional establishment of religion. This post tracks some commentary on the case:

SCOTUSblog has been providing analysis of the divided decision:

The stark difference between the majority opinion in the Allegheny County case and the Court’s new opinion in the Town of Greece case illustrated the progress made by Justice Kennedy toward the Court’s full embrace — although for differing reasons among five Justices who determined the outcome – of the “coercion” test in determining whether a government practice amounted to an “establishment of religion” in violation of the First Amendment.

Eugene Volokh of UCLA School of Law provides his reactions: Continue reading

 

Supreme Court Rules That Town’s Prayer Practice Is Constitutional

The Supreme Court has released its decision in Town of Greece v. Galloway, 8468059167_e8ebfeedbf_zconcluding that the Town’s prayer practice has a “permissible ceremonial purpose” and is “not an unconstitutional establishment of religion.”

Writing for the Court, Justice Kennedy ruled that the Town’s prayer practice “fits within the tradition long followed in Congress and the state legislatures.”

Some highlights from his opinion: Continue reading

 

Monday Morning Review: Local Governments in the Federal Appellate Courts

Here are last week’s published decisions involving local governments:SCT stairs

Second Circuit

Fourth Circuit

 

Supreme Court Hears Argument in Town of Greece

Today, the Supreme Court heard argument in Town of Greece v. Galloway, No. 12-696, which asks whether the Town’s legislative-prayer practice violates the Establishment Clause. We previously discussed the case here.

Here is a transcript of the oral argument.

And here is a recap from Lyle Denniston. He concludes by building on a comment from Justice Kagan:

Justice Kagan tried to sum up: Isn’t the question here, she said, whether public meeting prayers with references to Jesus Christ “will be allowed in a public town session like this one?”  When Laycock agreed that that was the issue, Kagan said it was a hard one, “because the Court lays down these rules and everybody thinks that the Court is being hostile to religion and people get unhappy and angry and agitated in various kinds of ways….And every time the Court gets involved in things like this, it seems to make the problem worse rather than better.”

In the coming weeks of deliberation in private, the Justices’ challenge may well begin and end with how to keep from making the problem worse.  And, at that point, leaving Marsh v. Chambers intact, allowing local governments to have prayers just as state legislatures and Congress can, might be the least cause of public agitation.

 

 

 

Legislative Prayer and Local Governments: Do You Begin Every Meeting by Violating the Constitution?

The Supreme Court will evaluate local-government prayer practices this term.

The Supreme Court will evaluate local-government prayer practices this term.

If your community starts its government meetings with a prayer, it might be violating the Constitution.

In a case that the Supreme Court will consider in the coming term, Town of Greece v. Galloway, 12-696, the Court will decide whether a local government’s legislative prayer practice runs afoul of the Establishment Clause.

The Second Circuit held that the Town of Greece’s prayer practice is unconstitutional because “an objective, reasonable person would believe [it] had the effect of affiliating the town with Christianity.”

Continue reading