Think the Supreme Court Is Avoiding Big Issues This Term? Think Again.

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By Casey C. Sullivan, Esq. on October 31, 2016 11:12 AM

The Supreme Court is looking to keep controversial, potentially divisive issues off its docket this term, the conventional wisdom goes -- at least until it has a ninth justice on the bench. Today's oral arguments, for example, deal with service dogs and administrative exhaustion, for one, and cheerleader uniforms, in the other. Hardly the kind of issues that grab headlines or split the Court.

But the idea that the Court was playing it safe was upended on Friday, when the Court granted cert in five new cases, including a dispute over transgender students' ability to use the bathroom that matches their gender identity.

Diving in to the Transgender Bathroom Dispute

The transgender bathroom lawsuit is now the highest-profile case the Supreme Court will hear this term. The suit arose after Gavin Grimm was banned from using the boy's room at his Virginia high school. Grimm, a teenager who lives as a man but was born biologically female, was told that he would either have to use the girl's room or a hastily-modified broom closet to answer nature's call.

Grimm sued, arguing that anti-trans discrimination was prohibited by Title IX's ban on discrimination "because of sex." That's an interpretation that the Department of Education's policy follows, but a relatively novel reading of the law.

Transgender bathroom use became a major battleground in the culture wars this summer, as the federal government took a more aggressive stand on trans student rights while North Carolina banned transgender people from using the bathroom that matches their gender identity.

But the Grimm case, Gloucester County School Board v. G.G., is about more than just transgender rights. At its center is a dispute over judicial deference to a government agency's interpretation of the laws it administers, what's known as Auer deference. In granting cert, the Court declined to consider whether Auer should be overruled outright, but any Supreme Court decision could have a significant impact on civil rights law and agency deference nonetheless.

But Where's Trinity Lutheran?

While the Court's grant of cert in Gloucester County School Board signals that it's not afraid to tackle weighty issues, one of the most anticipated cases of the term remains largely neglected.

Trinity Lutheran Church of Columbia v. Pauley deals with the unique intersection of used tires and religious freedom. Missouri's Department of Natural Resources operates a scrap tire surface program, providing grants for schools and playgrounds seeking to install soft, bouncy, recycled-in-Missouri rubber flooring.

When Trinity Lutheran asked for its share of the recycled tire grants, the state rejected its application, citing the state constitution's strict separation of church and state. Trinity Lutheran argues that its exclusion from the program violates the federal Constitution's Free Exercise and Equal Protection Clauses.

The Court granted cert to Trinity Lutheran last January, a month before Justice Scalia's death. That should have set the case up to be heard early this term. Yet, more than ten months later, Trinity Lutheran is still nowhere on the Court's schedule.

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