Disputed cases next for court, Gorsuch

The addition of Neil Gorsuch to a divided U.S. Supreme Court could have a momentous impact on legal controversies over issues that include religion, gay rights, labor and President Trump’s attempts to limit immigration and entry to the United States. That’s despite the fact that Gorsuch’s confirmation merely restores a conservative majority that had prevailed on the court for decades before the death of Justice Antonin Scalia in February 2016.

The Republicancontrolled Senate overrode Democratic objections and approved the 49-year-old Gorsuch, Trump’s first Supreme Court nominee, by a 54-45 vote Friday in time for the court’s final hearings of the 2016-17 term. He is to be sworn in on Monday or Tuesday as the court’s 113th justice, White House spokesman Sean Spicer said.

One case the new justice will hear, on April 19, could determine the eligibility of religious institutions for state fund-

ing. A Missouri church is challenging the state’s refusal to include its preschool in a program that helps schools buy resurfacing equipment for their playgrounds.

As a federal appeals court judge since 2006, Gorsuch has endorsed expansive rights for religious adherents. In a 2013 case, for example, he supported the right of the religious owners of Hobby Lobby, a nationwide arts-and-crafts chain, to deny contraceptive coverage for female employees. The Supreme Court later upheld the ruling by Gorsuch’s court.

Lower courts have ruled against the Missouri church. But Michael McConnell, a Stanford law professor and a former appeals court colleague of Gorsuch, said Friday he expects Gorsuch and his court to agree with the church that “children cannot be denied equal access to government-funded benefits of an entirely secular nature for no reason other than the religious affiliation” of their school.

On the other hand, said Hadar Aviram, a law professor at UC Hastings in San Francisco, Gorsuch’s record and writings suggest that he won’t side with the court’s conservatives on everything.

“On criminal justice issues, he has an interesting record, similar to Scalia ... a libertarian, essentially, not on board with over-criminalization,” Aviram said. She predicted Gorsuch — like his predecessor — would vote to protect individuals from high-tech police searches of their homes and vehicles, but would side with the state on the death penalty and other sentencing issues.

While some past justices, like John Paul Stevens and Harry Blackmun, have surprised the Republican presidents who nominated them by moving to the left, “I suspect we’re not going to see a lot of surprises out of Justice Gorsuch,” Aviram said.

If his record on religious rights is any indication, Gorsuch could influence the court to grant hearings to business owners who say their spiritual values forbid them to design and sell products for same-sex marriages. The justices have previously denied review of a case by a New Mexico florist who made that claim, but could decide this month to take up an appeal by a Colorado baker who was sued for refusing to make a wedding cake for a gay couple.

While the court seems unlikely to reconsider its 2015 ruling that declared a constitutional right of same-sex couples to marry, another contentious gay-rights issue is headed for the docket: whether federal laws against employment discrimination protect gays and lesbians.

A federal appeals court in Chicago ruled Tuesday that the law’s ban on sex discrimination also covers sexual orientation. That ruling is not being appealed, but other appeals courts have reached the opposite conclusion, and the high court will be asked to resolve the conflict, perhaps in the new term that starts this fall.

By the fall, or perhaps earlier, the justices will also be confronted with Trump’s attempt to freeze U.S. admission of refugees and ban entry of anyone from six nations whose populations are almost entirely Muslim.

Appeals courts in San Francisco and Richmond, Va., are reviewing rulings by federal judges that said opponents of the president’s executive order were likely to prove the order was based on religious discrimination. Gorsuch has not ruled in any similar cases, but the dispute could require him to weigh the religious rights of Muslims against the conservative doctrine of deferring to executive decisions on national security.

Gorsuch is on record as opposing the Supreme Court’s doctrine since 1984 of deferring to administrative agencies in interpreting unclear laws. That stance could encourage Gorsuch, and his court, to take up a restaurant industry challenge to a ruling allowing waiters and waitresses to keep their tips, said James Burling, vice president for litigation at the business-backed Pacific Legal Foundation.

The federal appeals court in San Francisco upheld U.S. Labor Department rules last year that prohibited restaurants from requiring tipped employees to share their tips with supervisors and other non-tipped workers. The industry argued that the rules conflicted with federal law.

A more far-reaching labor case is also headed for the Supreme Court, where Gorsuch’s vote could be decisive.

Nonunion members are challenging, on freespeech grounds, laws in California and 22 other states that allow government employee unions to charge nonmembers fees for the cost of representing them at the bargaining table. The fees are an important source of funding for the unions, and ultimately for their Democratic supporters.

At a January 2016 hearing in a suit by nonunion teachers from California, Scalia made it clear that he intended to vote to prohibit the union fees. But he died before a ruling could be issued, and the remaining justices deadlocked 4-4, leaving intact a lower-court decision in the unions’ favor. The court will revisit the issue, however, in one or more similar cases now in lower courts.

Other issues awaiting the review of Gorsuch and his colleagues include:

Guns: A challenge is pending to a California law that requires individuals to ask sheriff ’s offices for permits to carry concealed handguns in public, permits that are almost always denied in urban counties. The California case, and cases from other states, could require the justices to decide how the right to possess firearms for self-defense at home, declared in a 2008 Scalia opinion, applies outside the home.

Immigration: Trump’s attempt to strip federal funding from cities and states that refuse to cooperate with federal immigration agents is being challenged in a San Francisco federal court by San Francisco and Santa Clara counties, a case scheduled to be heard next Friday. The dispute could reach the high court by next year.