SCOTUS reveals striking priorities in selecting a messy religious discrimination case to hear this Tuesday, while passing on a chance to sit with those in prison (and review cruel and unusual punishment in the US).

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There’s almost too much to choose from when attempting to sum up recent US strife: On Thursday, Missouri’s Attorney General bypassed sitting representatives to launch the most prohibitive ban on gender-affirming care yet, which would effectively deny treatment to adults and children alike. Judge Samuel Alito issued a short-term stay on a Texas judge’s revocation of FDA approval for mifepristone (part of a two-pill protocol to end early-stage pregnancies), while Florida Governor Ron DeSantis’s six-week legal abortion ban was signed into law late Friday, April 14. Documents attesting to false financial reporting by Supreme Court Justice Clarence Thomas continued to emerge this weekend. And multiple mass shootings on April 16 again led President Joe Biden to call for gun control.

Not to be lost amid the fray, though, is the way justice will be shaped by the Supreme Court this session, as evidenced in one upcoming SCOTUS case, and one case denied.

The curious case of religious exemption

Late last week, SCOTUS confirmed that it will hear arguments on Tuesday for a case involving a Christian mail carrier refusing to work on Sundays. Gerald Groff faced discipline from the US Postal Service for failing to show up for shifts assigned on the Christian Sabbath (Sunday), then resigned and sued his employer on the basis of religious discrimination. Two lower courts rejected this claim, but it will now be heard by a court with a strong track record of widening religious rights in recent years.

At the crux of this question is discrimination law. As the American Postal Workers Union wrote in an amicus brief:

A day off is not the special privilege of the religious. Days off, especially on the weekend, are when parents can spend the day with children who are otherwise in school, when people can spend time on the other necessities of life, when the community enjoys a common day of rest for churchgoers and the nonreligious alike. Petitioner is wrong to claim he has a special legal right to a regular day off that the Buddhist and the agnostic and the Catholic do not. Petitioner has a right to wear a religious pin, symbol, or garment, but no right to require his co-workers to give up their weekends to facilitate his practice of his faith. The Free Exercise Clause does not countenance such a discriminatory preference for workers whose religious practice prohibits them from working on their Sabbath.

Brief of Amicus Curae, American Postal Workers Union

This argument rests on the notion of neutrality as an ideal standard for business operations. Any deviation from neutrality risks discriminating against another group, and must be weighed accordingly. Implicit in this argument, too, is that it is not the responsibility of an employer to change its business operations to suit an employee; an employee, rather, makes a choice when contracting out his services to any given organization under expectations he would have understood before signing.

But Groff’s argument for religious discrimination draws from Title VII of the Civil Rights Act of 1964, which prohibits workplace discrimination for a number of factors: sex, race, nationality, and religion among them. The act centrally addresses discriminatory hiring practices, but it also includes the idea that, unless a religious accommodation can be proven to cause an “undue hardship” to the employer, the employer is obligated to be flexible.

That term, “undue hardship”, has been under scrutiny since its establishment, and in 1977 was set low in Trans World Airlines v. Hardison: as anything above “de minimis” (minor) cost. Groff’s legal team is looking to overturn the Hardison precedent and establish “significant difficulty or expense” as the new standard before an employer can refuse religious accommodation on Title VII grounds.

The results of this case might superficially seem like a “win” for those hoping to soften the US church/state divide, but strengthening Title VII’s “undue hardship” test would also strengthen the role of Title VII, and create a fascinating new climate for employers. Much as a great deal of recent anti-queer and anti-trans legislation has been so broadly formed as to include many forms of gender-affirming care for people trying to enhance their representation of natal sex, so too could a defense of Groff’s right to a religious work exemption on Title VII grounds also strengthen other accommodation requests, and weaken the autonomy of business enterprise.

We certainly can’t rule out the possibility of SCOTUS accepting this case with a workaround in mind that wouldn’t automatically include all other discrimination categories under Title VII, or present a stricter regulatory standard for employers. However, there is a strong possibility that the court, in choosing this case, will either have to side against a religious plaintiff to protect the government from more emboldened accommodation suits ahead, or else reap complex legal consequences by setting a higher burden of proof for “undue hardship” on employers going forward.

Not sitting with those in prison

While SCOTUS will take up this question of religious discrimination, it also passed on a case this Monday, April 17, in which the plaintiff was asking for limits to solitary confinement, as a “cruel and unusual” punishment when used to excess. Dennis Hope lost a lower court appeal to see his exceptional total time in solitary, of 27 years beginning after a prison escape in 1994, as a violation of the prohibition on excessive punishment, as outlined in the Eighth Amendment. That case also involved the Fifth and Fourteenth Amendment question of “due process” (federal and state-based, respectively), which the plaintiff argued had not been in evidence in the official reviews used to determine his confinement for decades.

Solitary confinement gained recent prominence in the news when video surfaced last week of Joshua McLemore, a 29-year-old white man with schizophrenia, who died of dehydration and malnutrition in a Jackson, Indiana jail in 2021, after 20 days in solitary: naked, restrained, and provided with no medical attention.

Outside of recent media prominence (which includes a segment on Last Week Tonight that highlighted a case of 18 years in solitary under wrongful conviction), solitary confinement has long been a serious background issue in the struggle for carceral reform. The US has the sixth-highest per capita population in prison (under El Salvador, Rwanda, Turkmenistan, American Samoa, and Cuba), and the second highest prison population (under China), and all too often this extensive carceral state has normalized the use of brutal practices within it.

Solitary confinement hit peak use in the US in 2014, when statistics showed 80,000 to 100,000 people spending more than 22 hours for 15 days or more in US jails and prisons. A nationwide report out of Yale Law School pinned the number at 41- to 48,000 for 2021, when COVID modified procedures, but The New York Times noted in February that Texas in particular remains “a leader in the use of prolonged solitary confinement”, with “more than 500 prisoners [having] served more than 10 years in almost total isolation, and 138 [having] served more than 20”.

There will be no lack of new judicial and congressional battlegrounds in the coming weeks and months in the US, as voting rights and bodily autonomy especially remain at the fore of the political agenda. The cases taken up by SCOTUS and other US courts, and the rights granted and defined within them, will matter greatly to the shape of the country’s democracy going forward. So too will the cases left behind.

GLOBAL HUMANIST SHOPTALK M L Clark is a Canadian writer by birth, now based in Medellín, Colombia, who publishes speculative fiction and humanist essays with a focus on imagining a more just world.