30 Months After Only Three Justices Would Have Granted Cert In Roman Catholic Diocese of Albany, The New York Court of Appeals Holds FultonChanged Nothing

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Decisions from Justices Kavanaugh and Barrett continue to linger.

Josh Blackman |

Since 2016, the Roman Catholic Diocese of Albany has been challenging a New York law that mandates that insurance policies must cover abortions. The state courts upheld this mandate as a neutral law under Employment Division v. Smith. In June 2021, the Supreme Court decided Fulton. Justices Thomas, Alito, and Gorsuch would have overruled Smith. But Justices Barrett and Kavanaugh had some questions. After Fulton was decided Roman Catholic Diocese of Albany wound its way to the Court.

In November 2021, after several relists, the Court GVR’d the case in light of Fulton. Justices Thomas, Alito, and Gorsuch would have granted the petition. There was no reason for a GVR, since Fulton did not actually change Smith. The options were grant or deny. At the time, I wrote “It is very obvious to me that Justices Kavanaugh and Barrett have no interest in deciding another Free Exercise Clause case now–especially after the denial of review in the Maine case.”

Since that GVR, the case moved its way through the state courts. In June 2022, the New York Appellate Division ruled that Fulton did not change the relevant standard, so the Diocese lost again. I observed:

And why did Fulton not change the relevant standard? Because in Fulton, Justices Barrett and Kavanaugh declined to overrule Employment Division v. Smith, a decision that required courts to deferentially review laws that burden religion. Even when Justices Barrett and Kavanaugh joined a conservative majority opinion, they tempered its reach.

Today, nearly two years later, the case was decided by the New York Court of Appeals (the highest court in New York). And, no surprise, the court ruled against the Diocese. The court held that since Fulton did not overrule Smith, the prior New York precedent decided under Smith still stands.

When the Court GVRs a case, it may wipe the issue off a Justice’s plate, and conscience. But the matter continues in the lower courts. Lawyers on both sides dutifully litigate the issue. Judges and clerks have to write opinions. The Diocese continues to operate under a sword of Damocles. Yet, throughout this entire process, the ending is preordained. In 2021, there was no reason to GVR the Albany case because it was decided under Smith, a precedent that Justices Kavanaugh and Barrett did not overrule. The GVR wasted everyone’s time.

And here we are. Three years after Fulton and thirty months after the GVR, the case is ready for review. No doubt the Diocese will file a cert petition. It will probably come up for conference later this year. The Court could grant the case, and add it to its ever-shrinking docket for argument in February. If so, there would be a nearly four year gap between the GVR and the decision in June 2025. Or the Justices could stew on the petition for a while and grant in February, kicking the case to the OT 2025 term, with a decision by June 2026, five full years after Fulton. Or, the Court could deny cert altogether.

If after all of these deliberations, we are still left with three Justices dissenting from certiorari, what will we have to show for it? The Court should have put the case out of its misery in 2021 rather than wasting everyone’s time.

I realize the symbol of the Court is a turtle–slow, deliberate, and careful. But these sorts of GVRs are not like the turtle. They are like the ostrich–sticking your head in the sand and hoping a problem goes away. But it never does.

For what it’s worth, there is another case in the pipeline that would allow the Court to revisit whether to overrule Smith. New York compels Amish schoolchildren, living in remote communities, to receive vaccinations that conflict with their sincerely held religious beliefs and Amish way of life. The District Court ruled against the Amish plaintiffs in Miller v. McDonald, relying on Smith. The case was recently briefed before the Second Circuit. The plaintiffs squarely preserved the question of whether Smith should be overruled. There is a similar case pending up for conference next month from Connecticut involving K-12 education, though I tend to think the Amish case may be a better vehicle.

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