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Hurry up and wait

Supreme Court | A high court conference leaves religious-liberty litigants hanging

Issue: "Preach it," Oct. 6, 2007

The U.S. Supreme Court on Sept. 25 left in limbo thousands of litigants, attorneys, and court-watchers when it issued the unusual results of a "mega-conference" held the day before.

As is customary heading into the new term that begins Oct. 1, the nine justices had pow-wowed over a lengthy case list, the summer-recess accumulation of "petitions for certiorari" or "cert"-requests for high-court review. Uncustomary was the court's near-complete post-conference silence on a significant slate of cases involving religious liberty and social issues.

The justices granted review in 17 cases involving matters from patent rights to age bias to taxes to illegal arrest, but kept mum on suits involving freedom of speech, religious rights-of-conscience, church government, asylum, child pornography, and the regulation of sexually oriented businesses. Now, attorneys and parties in those cases must wait at least until Oct. 1 (when the court will likely issue a new list of cert denials) and possibly until the results of the court's next conference, scheduled for Oct. 5.

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"It's like waiting for Christmas morning," said Alliance Defense Fund (ADF) attorney Jordan Lawrence, who had been hoping to learn whether the court would grant review in two cases his firm is handling. "You wake up at 2 a.m. and your parents say, 'We're not opening gifts until 9.'"

Also odd about the court's mega-conference results was the stubby list of cert denials-just two cases long-issued Sept. 25. "Typically, you would see the 17 grants, a hundred or so denials, and only a handful of cases the court is holding" for further consideration, said Kelly Shackelford, chief counsel for Liberty Legal Foundation, a Dallas public-interest law firm. Shackelford is representing Texas schoolteacher Karen Barrow in a case pending before the court. "It surprised me that the justices didn't issue a list of cases they know they're going to deny. . . . It would've been great for some of us to know we're still alive."

The justices on Sept. 24 did breathe new life into one pair of cases of interest to political conservatives: Crawford v. Marion County [Indiana] Election Board and Indiana Democratic Party v. Rokita. Both appeals involve voter identification. Both Hoosier Democrats and the American Civil Liberties Union are appealing lower court decisions that upheld the constitutionality of an Indiana law requiring in-person voters to present photo I.D. Both appellants claim the law violates the First and 14th Amendments and unfairly discriminates against poor and minority voters.

"In the area of voting rights, the law needs to do two things: Make sure people who have the right to vote are not kept from voting, and also that people do not vote illegally," said Roger Clegg, president of the conservative Center for Equal Opportunity. "Both are perfectly legitimate ends, but liberals sometimes make it seem that only one side of the equation matters."

The disconnect between Democrats' ongoing claims of voter irregularity and their opposition to Indiana's voter I.D. law intrigues Indiana Family Institute president Curt Smith. "Don't they want Indiana to do all we reasonably can to pursue illegal voters and certify that each voter is actually an enfranchised citizen?" he said.

Clegg points out that voter I.D. laws in several states have survived constitutional challenges. "Even if the court finds something to dislike about the Indiana law," he said, "the case will not likely close the door entirely on states' efforts to make sure that only legal voters vote."

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