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Finality in 28-Year NOW Case, Notre Dame and Elmsbrook Languishes

By Gabriella Khorasanee, JD on May 14, 2014 | Last updated on March 21, 2019

The Seventh Circuit has important cases up and down the pipeline to the Supreme Court, all dealing with sensitive issues that pit people on either side of lines drawn in the proverbial sand.

Recently, the Seventh Circuit put to rest a case that has been litigated for 28 years, and denied an en banc rehearing -- with the next step almost certainly being a bid for cert. review.

All that while an Establishment Clause case languishes in perpetual conference.

NOW v. Scheidler, et al.

The National Organization for Women filed a suit against Joe Scheidler, "the Godfather of the pro-life movement," and others, alleging violations of the Racketeer Influenced and Corrupt Organizations Act. The case went before the Supreme Court not once, not twice, but three times. On the final go-around before the Seventh Circuit was the issue of whether the defendants, who prevailed, were correctly awarded costs.

NOW proffered three arguments as to why defendants were not entitled to costs, but the Seventh Circuit found none of them persuasive. Judge Easterbrook, writing for the panel dismissed NOW's arguments, and concluded: "This litigation has lasted far too long. At last is it over."

Notre Dame En Banc Review Denied

In March of this year, the Seventh Circuit released its decision in Notre Dame's appeal challenging a district court's denial of preliminary injunction. The case dealt with Notre Dame's argument that Form 700 -- the self-certification form that religious non-profits can fill out to exempt themselves from the Affordable Care Act's contraception mandate -- was as substantial burden. Judge Flaum authored a dissent disagreeing with Judge Posner's "trigger theory."

Seeing discord among the panel, Notre Dame filed a petition for rehearing en banc, but last week, the Seventh Circuit denied that petition. That just leaves SCOTUS; with this issue circulating in the circuits like the DC Circuit and the Tenth Circuit, it's only a matter of time before the High Court will have to weigh in.

Elmbrook School District v. Doe -- Still Pending

On the heels of the Greece v. Galloway decision, the Supreme Court has yet to decide whether it will grant cert. in a case originating in the Seventh Circuit, where a public school's practice of holding high school graduation in a church is being challenged on Establishment Clause grounds, among other things. As of this writing, the case has been distributed for conference eight times -- but no word yet whether the Supreme Court will grant cert. We'll keep you posted when it finally decides.

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