U.S. Supreme Court Review 2013-2014 Term, 1114 SCBJ, SC Lawyer, November 2014, #37

AuthorMiller W. Shealy Jr.

U.S. Supreme Court Review 2013-2014 Term

Vol. 26 Issue 3 Pg. 37

South Carolina BAR Journal

November, 2014

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0 Miller W. Shealy Jr.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0The U.S. Supreme Court has completed another term, and once again controversy is no stranger to the High Court. Controversial Court opinions cover a wide range of issues: The rights of religious employers, abortion, police searches of cell phones and presidential powers are just some of the high tension conflict areas addressed by the Court in the most recent term. The only certainty in the Court's rulings is that all of this will come up again the next term or two. The Court seems unable to put certain issues to rest. Whether this is simply inherent in the times in which we find ourselves or a failure of the Court's jurisprudence, I will leave to others to judge. Maybe it's a bit of both? We seem to be going through another period—perhaps it has always been this way?—when every contentious political and moral issue eventually becomes a legal issue for the Supreme Court. Whether this is a flaw in our constitutional system or a good thing is beyond the scope of this article.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0This year I have picked out what I believe to be the most important cases of the term. I hope everyone's "most important" case found its way on my list. While we might disagree on which one is the most important this term, it is hard to imagine any of the Court's other cases replacing one of these for a top spot on the list.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0(1) Rights of religious employers and corporate personhood

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0The top spot this term goes to the very contentious and controversial case of Burwell v. Hobby Lobby Stores, Inc.1 Other cases are definitely near the top of the list. Certainly, Hobby Lobby has generated the greatest popular and press reaction. However, Hobby Lobby just seems to edge out other rivals as the top case of the term.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0The Court held 5-4 that the HHS contraceptive mandate under the Patient Protection and Affordable Care Act (ACA) violated the Religious Freedom and Restoration Act (RFRA). The RFRA bars the government from substantially burdening a person's exercise of religious freedom, even though the burden may arise from a law of general applicability. However, the government may avoid the RFRA if it demonstrates a compelling governmental interest and the burden on the exercise of religion is the least restrictive means of achieving that compelling interest. Congress did not specify which forms of contraception should be covered, rather the ACA left that decision to HHS. Twenty forms of contraception were required to be covered by HHS regulations. Four of these forms of contraception had the effect of preventing an already fertilized egg from attaching to the uterus. Certain religious employers such as churches and many non-profits are exempt from the ACA mandate and HHS regs. However, other for-profit entities are not exempt under the ACA or the HHS regs.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Hobby Lobby and related companies are closely held for-profit entities. The owners of these companies had express religious objections to the four forms of contraception that directly resulted in the destruction of an already fertilized egg. The Court found that closely held businesses, such as Hobby Lobby were "persons" under the RFRA. The Court also found that their religious beliefs were substantially burdened and that no compelling government interest had been established. A very powerful dissent argued that Hobby Lobby was a for-profit business and not a "person" under the RFRA. As such, Hobby Lobby could not have religious beliefs.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Most significant here is that the Court recognized that closely held for-profit business entities could have religious beliefs for purposes of the RFRA. Arguably, they can have religious beliefs for constitutional Establishment and Free Exercise Clause purposes as well? Of equal significance is the Court's reaffirmation of the doctrine that in the free exercise context, it is not the function of the Court to judge the correctness or reasonableness of religious beliefs. The Court and lower courts only look to whether the parties asserting religious beliefs hold them honestly.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0The full impact of Hobby Lobby has yet to be determined. To what extent can business entities simply balk at a government mandate claiming it violates their religious beliefs? Some limitations stem from the Hobby Lobby decision itself. The Hobby Lobby rule almost certainly does not extend to publicly held corporations. It seems limited to closely held and sole proprietorship entities. But, what about partnerships of various sorts? We will definitely see other cases elaborating on the scope of the Hobby Lobby holding.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0(2) Fourth Amendment: cell phones and privacy

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0A very close runner-up this term for the top spot is the Fourth Amendment case of Riley u. California.2 Riley was stopped for a traffic violation, which led to an arrest for weapons. Pursuant to a search incident to arrest, the officer seized a cell phone from Riley's front pocket. The officer accessed the information—without a warrant—and determined that Riley was involved with a gang and a shooting. Riley was ultimately charged in connection with the gang shooting as a result of the officer accessing the cell phone. The Court held that the officer went beyond the scope of a search incident to lawful arrest when he accessed digital phone records without a warrant.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0The case actually resolves a long standing division in lower state and federal courts about the scope of search incident to lawful arrest as it concerns cell phones and similar electronic devices. The search incident...

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