Supreme Court set to take up gay rights, DACA, religious freedom

DACA Protest in Washington
Demonstrators raise their fists in protest of President Trump's attempts to end the Deferred Action for Childhood Arrivals (DACA) outside the Capitol on March 5, 2018. Copyright Samuel Corum Anadolu Agency/Getty Images file
Copyright Samuel Corum Anadolu Agency/Getty Images file
By Pete Williams with NBC News Politics
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The high court could also consider gun rights and the future of the Electoral College.


WASHINGTON — The U.S. Supreme Court will tackle gay rights, protection for young immigrants known as dreamers, and religious freedom — and also might consider gun rights and the future of the Electoral College — in its new term beginning next week.

It's a marked change from last year, when the court kept the temperature low after the battle over Justice Brett Kavanaugh's confirmation.

"At the absolute height of the presidential campaign, the Supreme Court is almost inevitably going to insert itself, with rulings that affect a lot of Americans and which they care deeply about," said Tom Goldstein, a lawyer who frequently argues before the court and publishes SCOTUSblog.

LGBT rights

Four years after ruling that same-sex couples have a right to get married, the Supreme Court will decide whether gay, lesbian and transgender employees are covered by existing discrimination laws. Title VII of the Civil Rights Act of 1964 makes it illegal for employers to discriminate on the basis of race, color, national origin, religion and sex, but the lower courts are divided on whether that last category covers sexual orientation.

Brian Sutherland, the lawyer for an an Atlanta-area man who was fired from a county government job after joining a gay softball team, says it does. "One simply cannot consider an individual's sexual orientation without first considering his sex."

But in a switch from the position taken under President Barack Obama, the Trump Justice Department argues that Congress never intended the law to include sexual orientation when it passed the Civil Rights Act 55 years ago. "The ordinary meaning of 'sex' is biologically male or female. It does not include sexual orientation," the federal government's legal brief says.

For the nation's LGBT people, the issue involves "a more fundamental freedom than marriage," according to Ria Tabacco Mar of the American Civil Liberties Union. "It goes to the very heart of the ability to work and earn a living."

Status of 'dreamers'

In another high-profile case, the justices will decide the future of the Obama-era Deferred Action for Childhood Arrivals program, which has allowed 700,000 young people known as "dreamers" to avoid deportation. Children of illegal immigrants can remain here if they were under 16 when their parents brought them into the country, provided they arrived by 2007.

The Trump administration declared the program illegal two years ago and tried to shut it down, but lower federal courts blocked the effort.

DACA's defenders say the government violated federal law by failing to cite adequate reasons for abruptly canceling the program, but the Justice Department says DACA was always meant to be a stopgap and that its continuing enforcement discourages Congress from coming up with permanent changes to immigration law.

New York's defunct handgun restriction

The court is also scheduled to hear its first case on gun rights in nearly a decade, a development that advocates of gun rights are hoping will lead to an expansion of Second Amendment freedoms.

The legal dispute involves an ordinance unique to New York City that allowed residents with a handgun permit to transport the gun, but only to shooting ranges within city limits. Gun owners who wanted to practice at ranges outside the city sued and lost, so they appealed to the Supreme Court. But after the high court agreed to hear the case, New York promptly rescinded the law, taking it off the books.

The challengers urged the court to hear the issue anyway, arguing that disposing of the case would not prevent New York or any other city from imposing similar restrictions in the future.

Separation of church and state

The court returns to the issue of separation of church and state this term, considering whether Montana can block religiously affiliated schools from participating in a state scholarship program to help needy families.

The state says its constitution prohibits any direct or indirect payment to church-affiliated schools. Parents who want to send their children to a Christian school said that provision violates their freedom of religion under the U.S. Constitution.

Faithless elector

The justices might also take up a case that could change the way the nation elects the president. In the general election, voters actually choose a slate of electors appointed by the political parties of the presidential candidates. Those electors meet in December to cast their ballots, which are counted by Congress in January.

In 2016, a Democratic elector in Colorado decided not to follow the wishes of his political party and instead to cast a ballot for someone else. After the state threw his ballot away, he sued and won. The 10th U.S. Circuit Court of Appeals, based in Denver, ruled that electors are free to vote for anyone they wish.

If the U.S. Supreme Court chooses to take up the dispute, it would have time to rule on the issue before the Electoral College meets in December 2020 to cast the formal vote for president.



State abortion laws

The hot-button issue of abortion will come before the justices this term. The Supreme Court said Friday that it would take up a Louisiana law that would require doctors offering abortion services to have admitting privileges at nearby hospitals. That requirement would leave the state with only a single doctor able to perform abortions, women's groups say.

It's the first major abortion casethe high court will face since Kavanaugh succeeded Anthony Kennedy, who voted to uphold Roe v. Wade. The court will hear arguments in the case early next with year, likely making a decision by late June.


RBG's health

Throughout the court's coming term, the health of the court's oldest justice, Ruth Bader Ginsburg, will be a continuing concern.


"There are going to be stories all year long about how she's doing, and she's going to be under a microscope," Goldstein says.

Justice Ginsburg missed two weeks of oral argument last term after doctors found three cancerous spots and removed a portion of one of her lungs. Over the summer, she received radiation treatment for a tumor discovered on her pancreas.

At a public forum in late August, she said she will remain on the court as long as she can devote full steam to the job. "And that means at my age, 86, you have to take it year by year," she said. "I know I'm OK. I was OK this last term, I expect to be OK next term."

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