The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
In the past decade, a handful of businesses have declined to provide certain services for same-sex unions. That number is dwindling, and will eventually approach zero. These cases raise Free Speech issues: for example are photographs/flowers/cakes/etc. considered speech? These cases also raise religious liberty issues: does the application of a non-discrimination law violate the Free Exercise Clause? In Masterpiece Cakeshop (2018), the Court ducked both of these hard issues by finding "animus" in the record. I always viewed this resolution as a punt. The Court desperately hoped these issues would simply vanish.
Shortly after Masterpiece was decided, the Court GVR'd Arlene's Flowers v. Washington. Barronelle Stutzman's case began in 2013. Yes, it took five years to go from the complaint to the GVR. In June 2019, the Washington Supreme Court once again ruled against Stutzman. A cert petition followed in September 2019. The case was distributed for conference in December 2019. However, in February 2020, the Court granted Fulton. And the Court would hold Arlene's Flower for fourteen months. On the day after Fulton was decided, ADF asked the Court to grant the petition:
On June 17, 2021, this Court issued its decision in Fulton v. City of Philadelphia, No. 19-123. While the Court held Philadelphia's discrimination against faith-based adoption agencies unconstitutional, it left lower courts without guidance on the first question presented here: whether the government can compel an individual to communicate celebratory messages in violation of their faith. Pet.i.
This case is a uniquely good vehicle for addressing that question. It cleanly presents an issue this Court deemed cert-worthy in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, 138 S. Ct. 1719 (2018)—a question on which the lower courts are intractably split.
Today, on the so-called "mop-up" list, the Court denied cert in Arlene's Flowers. There was nothing to GVR, because Fulton was so fact-specific. Instead, Stutzman got a simple denial.
Justices Thomas, Alito, and Gorsuch would have granted the petition. All three of them were on the Court for Masterpiece. However, the two newest members were content to let Arlene's Flowers wilt. The fact that three Justices were willing to grant signals that only one more vote was needed. Perhaps Justices Kavanaugh and Barrett do not think a free speech claim would prevail. Or maybe they simply want the case to go away. Or there could be other reasons to deny.
If you had told me in October 2020 that Justice Barrett would vote to deny cert in a case to overrule TWA v. Hardison, decline to overrule Smith, vote to deny cert in Ricks, and vote to deny cert in Arlene's Flowers–in the span of three months!–I wouldn't have believed you. I suspect that Justice Barrett's colleagues are equally shocked. Here, the three most conservative members of the Court placed public pressure on Justices Kavanaugh and Barrett. Had only two of them dissented, it would have been unclear where to lay the blame. (We saw this dynamic in the TWA v. Hardison case.) But when the troika unites, the accountability is plain.
I see this episode as another instance of the 3-3-3 Court. I realize there are many metrics to disprove this view of the Court. For example, Justices Barrett and Gorsuch agreed 91% of the time. But those metrics look at merits opinions. Much of the Court's divides are most visible on the shadow docket–specifically with respect to cert denials. I'll have more to say about this issue in another post.