The court will also consider major arguments involving whether juvenile offenders can be sentenced to life without parole for crimes such as rape or robbery; whether a prosecutor can be sued for winning a conviction by procuring false testimony; and whether a state program to replenish eroded beaches for public use unconstitutionally deprives coastal property owners of their private ocean access.
Cases on First Amendment
Oct. 6 - United States v. Stevens
Issue: Whether a statute criminalizing the depiction of animal cruelty - 18 U.S.C. 48 - is unconstitutional under the Free Speech Clause of the First Amendment?
Congress banned such portrayals in 1999 by passing 18 U.S.C. § 48 which prohibits the knowing creation, sale, or possession of depictions of animal cruelty with the intent to place them in interstate commerce for commercial gain. In 2005, Robert Stevens was convicted under the law for selling videotapes of fighting pit bulls and sentenced to 37 months in prison. The Third Circuit - sitting en banc - vacated his conviction [court decision], ruling that the law violated the free-speech clause of the US Constitution, and refusing the government's request to create a new category of unprotected speech. The Third Circuit noted that the Supreme Court last declared an entire category of speech unprotected by the First Amendment in 1982 -- when it unanimously decided in New York v. Ferber that the First Amendment right to free speech did not forbid states from banning the sale of material depicting child pornography. In Stevens' case, the Third Circuit rejected the government's argument that the depiction of animal cruelty was analogous to the depiction of child pornography.
In its appeal to the Supreme Court, the government argues that like child pornography, depictions of animal cruelty are not protected by the First Amendment and can be banned because they contain no redeeming content and might fuel a market that encourages further harm to animals.
Oct. 7 - Salazar v. Buono
Issue: Whether an individual has standing to bring an Establishment Clause suit challenging the display of a cross on government land, and, if an Act of Congress directing the land be transferred to a private entity is a permissible accommodation?
The First Amendment of the US Constitution provides in the relevant part:
Congress shall make no law respecting an establishment of religion.
The interpretation of this cornerstone of American democracy, also known as the "Establishment Clause" of the Constitution, will be at the heart of the legal discussion in the case of a Latin cross erected on federal land as a memorial for World War I soldiers. Not surprisingly, this case has garnered national media attention because - as with all separation-of-church-and-state cases - the stakes are high and emotions run strong.
The question is whether building and maintaining an unmistakable religious symbol of a particular religion on federal land violates the First Amendment's Establishment Clause prohibiting the government from endorsing a particular religion.
A district court ruled that the cross - sitting atop a prominent rock outcropping known as "Sunrise Rock" in the Mojave National Preserve - violates the Constitution's Establishment Clause. Congress, however, voted to block removal of the cross by park officials, and attempted to create a workaround by legislating an Act that directed that the particular piece of property upon which the cross is erected be transferred to a private entity. Later, the Ninth Circuit ruled [court opinion] that maintaining a Christian symbol on public property suggested an unconstitutional government endorsement, even after the land exchange. The Court rejected this attempted workaround, ruling that it's a "sham transaction" and holding that based on the government’s ongoing supervisory, maintenance and oversight responsibilities with respect to the cross and the property, the government retains important property rights in, and “will continue to exercise substantial control over,” the property on which Sunrise Rock is located. It thus remains an unconstitutional government endorsement of a particular religion, and the cross must be removed or replaced with a non-sectarian symbol.
The Department of Interior appealed from the Ninth Circuit ruling, and in two days, the Supreme Court will hear oral arguments in this case. Commentators expect the current right-leaning court to bend over backwards to make the cross constitutionally kosher, or as we say in Yiddish - to "kasher" the cross (yes, I realize the irony of this phrase!). One way for the conservative justices to reach this conclusion would be to rule that an individual does not have standing to bring such a lawsuit. Another possibility is to distinguish this case from a long set of precedents supporting the Ninth Circuit's ruling by deciding that the transfer of a tiny piece of property - in the middle of a vast, federally-owned National Preserve - is a permissible way to circumvent the constitutional prohibition on government endorsement of a particular religion.
The real mystery is how the newly-appointed Justice Sonia Sotomayor will vote in this case. There is very little in her record as an appellate judge to indicate her views on Church-State controversies. On one hand, she is a Catholic who does not hide her respect for religious rituals and symbols. On the other hand, she has repeatedly emphasized her committment to apply Supreme Court precedents, and the precedents on this issue are abundantly clear that the presence of an inherently religious, sectarian symbol on federally-owned land is a violation of the Establishment Clause. Certainly, her comments and questions during oral arguments will be revealing. She will probably be the most-watched and most-analyzed Justice during the upcoming hearings.
Addendum: For more analyses on the Supreme Court's new term and Justice Sotomayor's predicted influence, refer to the Washington Post's collection of short essays by law profs here.
