As if having a new chief justice and (soon) one new associate justice on the Supreme Court weren't enough, the October term also will bring a busy session of cases that have implications for churches and their interests.

The justices were starting their first week with a case on the constitutionality of Oregon's law permitting assisted suicide. Farthest out on the court's calendar to date is a case just accepted for early 2006 that raises questions about a campaign finance law that restricted the type of ads Wisconsin Right to Life was allowed to run during last year's congressional election campaign.

In between, the docket includes cases dealing with how the death penalty is applied in different states and laws affecting minors who want abortions and protesters outside abortion clinics.

After opening Oct. 3 with new Chief Justice John Roberts presiding, the court's makeup will change again, perhaps as soon as this fall. When she announced her retirement in June, Justice Sandra Day O'Connor said she would stay until her replacement is on the bench.

When Chief Justice William Rehnquist died in early September, Roberts, who had been nominated to replace O'Connor, was renominated for the chief's post.

A few hours before Roberts' formal investiture at the court, President George W. Bush named White House counsel Harriet Miers as his nominee to replace O'Connor. With a likely wait of a month or more before the Senate Judiciary Committee can begin confirmation hearings, Miers probably could not be seated until at least late November or early December, assuming a smooth confirmation process.

At a Supreme Court briefing hosted by Georgetown University Law School Sept. 19, panelists from the faculty discussed the ramifications of O'Connor's pending departure on the court's logistics.

For instance, if early cases come down to a 5-4 vote among the justices with O'Connor in the majority, "there is a reasonable claim that they ought to hold off" on further action until after her replacement is seated, said Professor Viet Dinh.

The last time a retiring justice's replacement was not in place, at the beginning of the 1991 term, Justice Thurgood Marshall announced at the beginning of October that rather than remain on the court, as he had offered, his resignation would be effective immediately, Dinh said.

Should O'Connor do that, the court would be in the position of potentially having 4-4 splits on some cases and having to wait until the new justice is seated to reconsider how to rule, he explained.

"The weirdest procedural pickle," Dinh said, "would be if O'Connor sits for the first few weeks and then changes her mind and resigns" before there is a replacement.

Worth watching

New justices aside, this term's docket itself makes the court worth watching for those with an interest in religious rights and life issues.

Among First Amendment cases is one questioning whether members of a church have the right to use in their rituals a type of tea the federal government lists as a controlled substance.

Interestingly, the case over Oregon's assisted suicide law also revolves around the federal Controlled Substances Act, with the U.S. Conference of Catholic Bishops supporting the federal government in one case and opposing the use of the drug law in the other.

On Oct. 5, in Gonzales vs. Oregon, the court will review a ruling by the 9th U.S. Circuit Court of Appeals that said then-Attorney General John Ashcroft overstepped his authority and undermined Congress's intentions in passing the Controlled Substances Act when he attempted to prohibit doctors from prescribing lethal doses of medicine as laid out in Oregon's assisted suicide law.

The USCCB filed an amicus or friend-of-the-court brief on the side of the federal government arguing that assisted suicide is not a legitimate medical purpose.

In another case, the USCCB opposes the government's application of the Controlled Substances Act in Gonzales vs. O Centro Espirita Beneficiente Uniao Do Vegetal. That case being argued Nov. 1 reviews a ruling by the 10th U.S. Circuit Court of Appeals that upheld the right of members of the small Brazilian-based church to use hoasca in religious ceremonies.

The Drug Enforcement Administration classifies the tea as a Schedule I drug because it contains the controlled substance dimethyltryptamine, known as DMT.

Arguing in favor of the church, the USCCB said that in recent practice the Constitution's free exercise clause "now seems largely subject to the political process." It asked the court "decisively to renew protections for religious institutions."

Abortion protesting

Nov. 30 will bring an abortion law case and two dealing with abortion protesters.

The court will hear for the third time arguments about the application of federal racketeering law against abortion clinic protesters in Scheidler vs. National Organization for Women and Operation Rescue vs. NOW. The cases, being heard together, ask the court to rule on whether the 7th U.S. Circuit Court of Appeals correctly applied the Supreme Court's 2003 ruling that protesters cannot be criminally prosecuted under the racketeering law.

The same day, in Ayotte vs. Planned Parenthood of Northern New England, the court will consider the constitutionality of New Hampshire's law requiring parental notification before a minor can obtain an abortion. At issue is whether the law is constitutional without a provision allowing for minors to bypass the requirement if the pregnancy poses a health risk to the mother.

This hearing would come several weeks after the special election in California determines the passage (or not) of Proposition 73, the Parental Notification Initiative that would require notification of parents of minor girls who intend to have an abortion. The California Catholic Conference supports the measure.

In an amicus brief, the USCCB and the Diocese of Manchester, N.H., argued that under the logic of the 1st U.S. Circuit Court of Appeals, abortion providers with no knowledge of a patient's medical history would be in the position of deciding what is best for minors.

"This court is not, and surely does not wish to be, the nation's medical board on abortion," said the bishops' brief. "Yet that is precisely what respondents invite."

Another four cases throughout the term raise questions about the application of the death penalty under various state laws and procedures.

Toward 'greater civility'

The day before the opening of the Supreme Court term, Washington's Cardinal Theodore E. McCarrick lauded "a period of greater civility in the selection of our chief justice."

At the annual Red Mass that traditionally precedes the court's opening, Cardinal McCarrick asked for continued civility from a congregation at St. Matthew Cathedral that included President George W. Bush; new Chief Justice John Roberts; White House counsel Harriet Miers, who was nominated the next morning to replace retiring Justice Sandra Day O'Connor; Attorney General Alberto Gonzales; and hundreds of people involved in law and politics.

Cardinal McCarrick said people from different parties and with different points of view should work together for the common good. Roberts was confirmed to his post Sept. 29 by a vote of 78-22.

"I pray that civility will continue," the cardinal added, "because it is so important not just for good government, but for the good care of our people who look here to all of you and your colleagues for the kind of leadership that is not destructive and not too intensely partisan."

Cardinal McCarrick said civility offers the best way for people of different points of view to work together and face the challenges of the world.

"We know that we must become friends again, not agreeing on everything, of course, but striving to dialogue more gently, more positively, more careful to set the conversation within a forum of mutual respect by being willing to listen for the good points that are always present in every reasonable discourse and will help us learn again to build and not to tear down," he said.

The cardinal concluded by comparing the need for civility and working together for the common good to that day's Gospel from Matthew 21, the parable of the vineyard workers.

"You and I and all of us here who have our own responsibility in this vineyard are called to come together, each in his or her own way, to put our hands to that task so that the Lord of the vineyard might be pleased with our service and he might bless it with peace and plenty for ourselves and our neighbor and for all this beloved land of ours," he said.

At a brunch afterward for the Catholic organization that sponsored the Mass, the John Carroll Society, Cardinal McCarrick again spoke of the need for civility, saying, "When I talk about civility in public life, it has to start with us."

He called on people to respect others and work for the common good, in their own families, in their workplaces and in their communities. In his prayer before the meal, Cardinal McCarrick asked God to help people "to be uniters not dividers, to be builders not destroyers."

The John Carroll Society, a lay organization offering spiritual, intellectual, charitable and social opportunities for Catholic professionals. Jane Sullivan Roberts, the wife of the new chief justice, is a member of the group's board of governors.

As the Mass concluded, Cardinal McCarrick walked down the cathedral's center aisle, flanked by Bush and Roberts. In his opening remarks, Cardinal McCarrick prayed that God would bless the new chief justice with wisdom, and he praised the legacy of Robert's predecessor, Chief Justice William H. Rehnquist, a Lutheran whose funeral service was held at the cathedral Sept. 7.

At the brunch, Cardinal McCarrick said he told Bush he had picked a great man for the new chief justice. He told the guests, who included Roberts, his wife and several family members, that the new chief is a man "prepared by talent, experience, virtue and courage for this enormous responsibility."

---CNS