Two Administration Switches, Two Different Results

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By Kimberly Strawbridge Robinson

The 2016 election fundamentally changed the landscape in at least two cases before the U.S. Supreme Court.

In one, President Donald Trump’s administration revoked Obama-era guidance on Title IX’s protections for transgender students, removing a key issue from the case. The Supreme Court sent that case back to the lower courts to reconsider in light of the change.

In the other case, the state of Missouri changed its policy regarding public funding for religious institutions, potentially mooting the dispute. It seems logical that the high court would bounce that one back to the lower courts too, right?

Not so fast.

The two cases are legally distinct, such that the Supreme Court is likely to hold on to the religion case despite its prior action in the transgender discrimination one, Michael W. McConnell, a constitutional law professor at Stanford Law School, Stanford, Calif., told Bloomberg BNA. McConnell, who was formerly a judge on the U.S. Court of Appeals for the Tenth Circuit, filed an amicus brief in the religious funding case in support of the religiously affiliated group challenging the state’s policy.

Both parties in the religious freedom case agreed, and urged the Supreme Court to hang on to the case.

But the America Civil Liberties Union said the “complete reversal of the very policy” at issue in the case means that the interests of the parties are now aligned. To “avoid issuing an advisory opinion or adjudicating an important constitutional issue without fair presentation and true adverseness between the parties, the court should either dismiss the case or remand to the court of appeals,” the ACLU said in an April 18 letter to the court.

The ACLU filed an amicus brief in support of the state in the religion case, and represents the transgender teen in the other.

Pulling Guidance

At issue in the transgender discrimination case, Gloucester Cty. Sch. Bd. v. G. G., is whether Title IX of the Education Amendments Act’s protection against “sex” discrimination also prohibits discrimination against transgender students.

At least two federal agencies, including the Department of Education, said that it did, and a federal appellate court deferred to the DOE’s determination.

That ruling allowed a transgender high-school student to use the bathroom that corresponded to his gender identity, despite a school board policy requiring him to use the bathroom that corresponded to his sex at birth.

The school board asked the Supreme Court to take a look at the case, and the high court agreed to decide whether the lower court properly deferred to the agency’s interpretation.

But before oral argument in the case, the Trump administration revoked the DOE’s determination that the lower court had relied upon.

Both parties argued that the Supreme Court should still consider the case.

True, one of the issues that the Supreme Court agreed to hear related solely to the agency interpretation that had been revoked, the parties conceded. But the high court also agreed to hear the underlying statutory issue: whether Title IX did in fact protect transgender students, the parties said.

The Supreme Court will “inevitably have to settle” that question, the transgender student said in his letter to the court.

Resolution of that issue now “will save the parties—as well as public and private parties involved in similar disputes throughout the Nation—enormous litigation costs as well as needless and divisive political controversy,” the school board said in its letter to the court.

Percolate First

The Supreme Court didn’t agree. The court March 6 vacated the decision below and sent it back to the lower courts “for further consideration in light of the” Trump administration’s position.

The court could have kept the case and answered the underlying statutory issue, McConnell acknowledged.

But it was predictable that the Supreme Court wouldn’t do that because the court typically allows issues to percolate in the lower courts before making the final decision, he said.

Trouble Brewing

Even before the Nov. 2016 election, a similar situation was brewing in Trinity Lutheran Church of Columbia, Inc. v. Comer.

At issue in that case is Missouri’s decision to exclude religious organizations from a program subsidizing the installation of rubber surfacing on playgrounds. The Missouri state constitution strictly prohibits such funding, the state argued.

Then-candidate for Missouri Attorney General Joshua D. Hawley publicly decried the state’s position. In fact, he filed an amicus brief in the Supreme Court supporting the other side.

When Republican Governor Eric Greitens took over for Democratic Governor Jeremiah Wilson Nixon, he changed the state’s policy.

As in Gloucester Cty., the parties filed letters with the court, urging the court to hang on to the case.

This time around, that’s likely to happen, McConnell said.

Notably, the court went ahead and heard oral argument in Trinity Lutheran, despite the new concerns . In contrast, the Supreme Court vacated and remanded Gloucester Cty., taking the case off the argument schedule.

‘Apples and Oranges’

Though both involve a change in position following a change in administration, court watchers shouldn’t read anything into the court’s treatment of GloucesterCty. in terms of how the court will resolve Trinity Lutheran, sources told Bloomberg BNA.

The question for the court in Gloucester Cty. following the change in administrative policy was the best way to proceed, McConnell said.

By contrast, the question in Trinity Lutheran following the change in administrative policy is whether the case is moot, he said.

The cases are like “apples and oranges,” David Cortman, of Alliance Defending Freedom, Washington, told Bloomberg BNA May 5. Cortman represented the religiously affiliated preschool challenging the state’s previous policy.

Political Winds

The court is likely to find that Trinity Lutheran isn’t moot and go on to decide the merits, is that the state voluntarily ceased the policy that the religious group was complaining about, Missouri said in its letter urging the Supreme Court to keep the case.

The court typically doesn’t find that a party’s “voluntary cessation” of the offending conduct moots a case unless it is “absolutely clear” that the conduct “could not reasonably be expected to recur,” the letter said.

The policy change here came as a result of an election, Cortman said. There’s no reason why the policy couldn’t be changed back if the “political winds” change again, he said.

Taxpayer Challenge

Moreover, the policy could change even if the political winds don’t, Cortman said.

That’s because the new policy is likely to be challenged as a violation of Missouri’s establishment clause, Cortman said.

“Missouri has liberal rules for taxpayer standing,” James R. Layton, of Tueth Keeney Cooper Mohan Jackstadt P.C., St. Louis, told Bloomberg BNA in a May 3 email. The Missouri Attorney General’s Office has recused itself from Trinity Lutheran. As a result, Layton is representing the state before the Supreme Court.

If Missouri “does approve a grant to Trinity Lutheran or another church, a taxpayer could sue,” Layton said.

Indeed, Cortman acknowledged that the Missouri Supreme Court has aggressively interpreted the state’s establishment clause as placing harsh limits on government funding of religious institutions.

Therefore, “there is a realistic possibility that Missouri’s courts may enjoin any future payments” to the religious group under the new policy, the state said in its letter to the court.

Same Team

But Daniel Mach, of the American Civil Liberties Union, disagreed, saying the argument to turn away the case is “far stronger” in Trinity Lutheran

“The defendant in Gloucester County never changed legal positions and has consistently stood by its policy,” Mach told Bloomberg BNA in a May 5 email. “In Trinity Lutheran, on the other hand, the state defendant has given the church all of its requested relief, and the state has publicly and officially disavowed its earlier policy.”

“Unlike in Gloucester County, there’s really no one left in Trinity Lutheran to defend Missouri and its constitution,” Mach said.

“In Trinity Lutheran, the church and the state are now playing on the same team,” he said.

Trial Balloon

However, the state has appointed a private attorney to argue in favor of the state’s previous policy, Missouri noted in its letter to the court.

That attorney—Layton—has been involved with the case from practically the very beginning, Cortman said.

In fact, Layton, who had been working in the Missouri Attorney General’s office as a special prosecutor, “is already counsel of record” for the state, Missouri’s letter said.

In that way, Trinity Lutheran is like the court’s pre-same-sex marriage ruling, United States v. Windsor, McConnell said.

There, the Obama administration refused to defend the Defense of Marriage Act, which defined marriage as between only a man and a woman for all federal purposes.

A bipartisan group within the House of Representatives picked up the defense of the act, and the Supreme Court found that the group was sufficiently “adverse” to those challenging the law to allow the case to go forward on the merits, McConnell said.

That’s most likely what the court is going to hold in Trinity Lutheran, he said.

Justice Ruth Bader Ginsburg’s question during oral argument suggesting the opposite was likely just her “floating a trial balloon,” McConnell said.

To contact the reporter on this story: Kimberly Strawbridge Robinson in Washington at

To contact the editor responsible for this story: Jessie Kokrda Kamens at

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