Justice Scalia’s death clouds religious liberty and abortion cases

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WASHINGTON — The death of Associate Justice Antonin Scalia not only brings about a battle over replacing him and elevates the Supreme Court as an issue in the presidential election, but it likely will affect important cases about life and liberty in this term.

Scalia, 79, was found dead in his room the morning of Feb. 13 while on a quail hunting trip at a west Texas resort. He reportedly died in his sleep.

While President Obama and the Republican majority quarrel over whether the Senate will act to confirm whomever he nominates, the eight remaining justices will be considering cases left in this term. The even number of court members offers the possibility, even probability, of tie votes.

One of the highly significant cases that potentially could result in a tie vote involves abortion, and another impacts religious freedom. The high court will hear oral arguments March 2 regarding a Texas law regulating abortion doctors and clinics. Oral arguments are scheduled March 23 in a challenge to the Obama administration’s abortion/contraception mandate to religious nonprofit organizations under the Affordable Care Act.

A 4-4 tie in either case — or any other case — would result in the lower court’s decision remaining in effect in its jurisdiction. The possibility of the Supreme Court rearguing 4-4 cases after a ninth justice has joined the court — something that has been done at times in the past — has been raised as well.

Russell Moore, president of the Southern Baptist Ethics & Religious Liberty Commission, acknowledged the gravity of Scalia’s loss and its timing.

“His death comes at a time when so much hangs in the legal balance, especially on questions of religious freedom,” said Moore in written comments. “Antonin Scalia was more than a brilliant jurist. He was a man of conviction who stood, often alone, for the permanent things.”

A 4-4 tie in the Texas abortion case would result in a pro-life victory for part of the country because the Fifth Circuit Court of Appeals upheld the state law. The appeals court opinion would remain in effect in Texas, Louisiana and Mississippi, the states that make up the Fifth Circuit.

A tie vote in the abortion/contraception mandate case would produce a defeat for religious liberty, as well as, in effect, the sanctity of human life. The Supreme Court consolidated seven different cases in which institutions have challenged the mandate. All the challengers lost at the appellate level, so the rulings against them would stand in those circuits.

Pro-life and religious freedom adherents could have expected favorable votes from Scalia, a leader of the court’s conservative wing, in both cases.

Scalia’s loss “is hard to overestimate,” said Michael Whitehead, former general counsel for the ERLC. “Justice Scalia’s judicial legacy will be as a stalwart defender of life and liberty — including the unborn and the dying.”

The Texas abortion and abortion/contraception mandate cases “are likely to result in 4-4 ties — or 5-3 losses because of Justice Scalia’s absence,” Whitehead told BP in a written statement.

The high court is “not paralyzed,” Whitehead said, but Associate Justice Anthony Kennedy “remains the swingman, deciding whether to break a tie and create precedent or whether to simply let the lower court decision stand, which leaves a conflict among the circuit courts of appeal for awhile.”

Nominated by President Reagan and confirmed unanimously by the U.S. Senate in 1986, Scalia championed the judicial theory of originalism or textualism, which calls for interpretation of the U.S. Constitution based on its original intent. This philosophy usually led to opinions that pleased conservatives, but infrequently it did not.

Scalia’s view of the Constitution led him to be an outspoken critic of the 1973 Roe v. Wade decision that legalized abortion and a supporter of state restrictions on the lethal procedure. He strongly opposed the court’s 2015 ruling that redefined marriage to include same-sex couples. He typically, though not perfectly, defended the right to free exercise of religion.

The clash over his replacement broke out quickly after his death. Senate Majority Leader Mitch McConnell said a replacement should await a new president. Obama said he would make a nomination “in due time.” Democrats and Republicans clashed over whether the Senate should vote on a nominee before Obama finishes his term in January 2017.

Despite his widespread influence as an originalist, “history may record Scalia’s brilliant effort as a failed project,” Mohler wrote in his Feb. 15 blog post. “The political reality is that we are unlikely again to see the appointment and confirmation of an originalist and constitutionalist like Antonin Scalia in the foreseeable future.”

Obama is “almost sure to nominate a liberal to the vacancy,” Mohler said. “This sets up a battle royal between Republicans and Democrats in the Senate and beyond.

“Given the Supreme Court’s central role in almost every American controversy … the future of the Court will be central to the presidential election,” Mohler wrote. “It has to be. The stakes for the nation are so very high. Antonin Scalia will be dearly missed and he may be virtually impossible to replace.”

Scalia is survived by his wife of 55 years, Maureen; nine children; and 36 grandchildren.

by Tom Strode | BP

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