US Supreme Court opens, likely to wade into health care debate

In 2001, the FCC changed course. It began enforcing a prohibition not just on systematic indecency but also on the use of fleeting expletives – dirty words blurted out during a prime time program. Several celebrities during music award programs on Fox used the “F-word,” and the “S-word.” In addition, an episode of ABC’s NYPD Blue featured a scene revealing a woman’s bare buttocks.

The FCC declared the programs “indecent.”

The broadcasters fought back with a lawsuit, claiming the FCC’s censorship was ill-defined and difficult to decipher. The Second US Circuit Court of Appeals in New York agreed and struck down the FCC’s policy as unconstitutionally vague.

The government defends the FCC policy, noting that broadcasters had been given fair notice.

Legal analysts are watching the case to see if the court uses it to affirm traditional indecency standards or instead requires a more permissive policy in light of widespread use of the Internet and cable television.

“I think the thing that will interest the court most is just the prospect of chilling” and whether the FCC policy provides the requisite degree of clarity, John Elwood, an appellate specialist and former law clerk to Justice Anthony Kennedy, told a recent briefing at the National Chamber Litigation Center.

“One thing that makes [Justice Kennedy] really passionate, is will people know whether they can broadcast something,” Mr. Elwood said. “If it is a close question whether you can broadcast Schindler’s List because there are naked people in concentration camps, that is going to give him a lot of heartburn.”

In an important case involving the First Amendment’s separation of church and state, the justices will consider whether a former teacher at a Lutheran elementary school can sue the church-run school for alleged disability discrimination and retaliation.

The case is Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC and Cheryl Perich.

School officials argue that the lawsuit is barred under the “ministerial exception,” a legal doctrine which blocks employment-related lawsuits against religious organizations filed by employees who perform important religious functions.

The ministerial exception is designed to insulate religious groups from interference and second-guessing by judges and others about how the group is carrying out its religious mission. It applies to pastors, priests, and rabbis.

The issue in the Lutheran school case is whether it also applies to a teacher who spent most of her day presenting a secular curriculum to her students, but who also was a “commissioned minister” who taught religious classes and led the children in prayer.

Douglas Laycock, a University of Virginia law professor representing the Lutheran school, says the case could trigger “a revolution in relations between church and state.”

“The ministerial exception is limited to employees who perform functions important to the employer’s religious mission,” he writes in his brief to the court. He says the teacher was dismissed for violating church rules and that the courts cannot decide her claim without becoming involved in underlying religious disputes.

“Allowing her claim to go forward would leave the church unable to control who teaches the faith to the next generation,” Mr. Laycock writes.

Lawyers for the teacher counter that generally applicable anti-discrimination laws are fully enforceable and “need not give way to religious exercise.”

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