After Seven Years of Litigation, Justices Kavanaugh and Barrett Let Arlene's Flowers Wilt

Justices Thomas, Alito, and Gorsuch put public pressure on Justices Kavanaugh and Barrett.


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.

NEXT: Elena's Greatest Hits

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  1. It’s too early to say what motivates Barrett. Next term will clear up a lot of things. It’s possible that Arlene was sacrificed simply due to the bad timing of having another major religion case being considered that the Court did agree to hear.

    Kavanaugh is a pussy who wants to be liked by everyone. I don’t think it’s much more complicated than that. The joke is that everyone will end up hating him in the end. He’d be better off going hardcore conservative.

    And Roberts apparently is all about the VRA and campaign finance. He’s willing to swing in other areas if it provides him some cover to go nutso when it comes to elections. I know he worked on that earlier in his career, but I still find it a very odd obsession to have. Maybe he lost his 1st Grade election due to voter fraud and the shame of having to sit there and watch as someone else got to bring celebratory cupcakes for the class left a permanent scar.

    1. Hardship strengthens the strong, and breaks the weak.

      Some people go through the fire, and come out the other side hardened, and maybe more than a bit embittered. (Thomas)

      And some people go through the fire, melt into a puddle, and resolve never to give anyone motive to do anything like that to them ever again. That would be Kavanaugh.

      1. Maybe this is not how to see life. Maybe people’s judgement is based on other things than liberals being mean to them.

      2. Roberts and Kavanaugh and ACB all helped George W Bush steal the 2000 election—they are Bush loyalists and Bush Republicans care most about being in power and so on the political spectrum they are as liberal as necessary to maintain power. Look at George P Bush—he is the only Bush currently involved in politics and he is as Trumpy as necessary to have a political career in the GOP.

      3. And some people go through the fire, melt into a puddle, and resolve never to give anyone motive to do anything like that to them ever again. That would be Kavanaugh.

        That would be Brett not knowing much of anything about the court, but pontificating anyway.

        1. It would also be Brett assuming automatically that no action he disagrees with was taken in good faith.

          It’s always media pressure or a desire to be invited to dinner parties or something.

    2. ” Kavanaugh is a pussy ”

      Careful, Dorothy. Professor Volokh has expressly stated that that word violates the Volokh Conspiracy civility/censorship standards.

      At least, it has been censored when used by a liberal. Your experience may differ in a viewpoint-driven censorship environment.

  2. What I note is that SCOTUS appears to favorably view religious organizations and grants them leeway regarding their beliefs, but seems less inclined with individuals. It may be that it is easier with organizations to understand their beliefs and support them. With individuals it may be harder to see why they should be granted exemptions from existing nondiscrimination laws. It is easy to see why a minister does not want to marry a gay couple, or a religious foster parent organization not to work with gay couples. It is a bit harder to understand why a florist’s or cakebaker’s beliefs are violated. It is a bit like understanding that a pig is making a more significant contribution than a chicken to a plate of bacon and eggs.

  3. ” The Court desperately hoped these issues would simply vanish. ”

    The number of bigots and level of bigotry in our society seem destined to continue to diminish — as reason, tolerance, and modernity continue to prevail over less forces in modern America — but the record indicates some level of gay-bashing will always be with us.

  4. Remember when conservatives and liberals alike were convinced that ACB would be the lead protector of religious liberty (for better or worse, depending on your viewpoint), in light of her membership in a small, conservative, Catholic society (haindmaiden, etc.), and having 7 kids? “The dogma lives loudly inside you” and the like? That seems wrong so far, no?

    1. Considering she got a lady boner during “shock and awe” when George W Bush was slaughtering babies in Iraq…I don’t think her religion is more important than her politics. So a Catholic should support Medicaid expansion…but Republican Catholics promote Abbottcare which is praying to Jesus that a tree falls on you and the tree is from the yard of a rich person that you can sue. 😉

  5. I forget if she was just asked to sell flowers to a customer who said they would be used in a gay wedding, or whether she was asked to go to deliver the flowers to the wedding site, set them up, etc. If the former, it *could* be that ACB/BK thought case wasn’t a great vehicle.

    1. Why should that matter?

      If plumber refuses to go fix a broken pipe at a gay person’s house, it’s discrimination against a protected class. If the hardware store refuses to sell you do-it-yourself pipe-repair equipment for the same reason, it’s also illegal. I’m not seeing a difference here.

      With the cake makers or the photographers, I’m a little sympathetic to their reluctance to put two grooms on top of the cake or make a rainbow frosting with the words “gay pride” or photograph two lesbians sealing their new arrangement with a deep kiss. But not all that sympathetic.

      Simply selling and delivering flowers is hardly expressive as per 1a. My hunch is that ACB will find a better case to advance her agenda. Good batters don’t swing at pitches that are hard to hit out of the park.

      1. The problem was the ADF petition had nothing to do with the state’s prosecution. It was laser focused on Stutzman as the owner responsible for operating her business legally respecting civil rights. At no time did the state say or imply that she was expected to personally handle this order.

        5 minutes of clarification of this by the state AG before the SCOTUS and they would have had to rule for the state. I agree ACB realized this and is waiting for a more ‘winnable’ case.

    2. It was the former. Why do you think it would make a difference?

  6. Free will actually should be at least as important as religious objections.

    But SCOTUS is a bunch of morons

  7. I’m sorry, but the First Amendment isn’t the issue here. It’s the Thirteenth.

    “Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.”

    It doesn’t matter one whit whether the servitude is paid for or not; slaves were paid in room and board, or they would simply have perished, so they were “compensated”. The fundamental concept is the involuntary nature of the servitude. It is glaringly obvious to me, at least, that SCOTUS is approving of involuntary servitude, i.e. compelling a person to perform a service for other people.

    It’s dumbfounding that the plaintiff didn’t take this approach, which, IMHO, is a slam dunk.

    1. Whatever one thinks of the abstract merits of that argument, if you think that raising the 13th amendment as a defense against the application of anti discrimination law is a “slam dunk,” then you must have slept through the last 60 years of American history.

    2. Yup, but the 13th amendment, taken seriously, would be a vast impediment to what has replaced civil liberties. None of the justices except maybe Thomas would be willing to go through that firestorm, I doubt many of them can even bring themselves to say it would be the right thing to do.

  8. You may think it’s a slam dunk, but it’s clearly at odds with legal precedent and would have a snowball’s chance of success.

    Nobody is forcing her to sell flowers. She can quit at any time. But once she’s open for business, it’s illegal to discriminate against protected classes. That doesn’t violate the 14th.

    1. And no one has ever been forced to make anything. They have been cited or fined for not operating legally, in these cases treating members of the public differently regarding recognized civil rights.

      1. Your arguments are so enormously sophistical, they make Gorgias look like a mediocre high-school debater.

        By your logic if a woman consents to have sex with *some* men she must submit herself to have sex with any rapist who comes along. She’s not being forced, she’s simply not allowed to discriminate against members of the public.

        Or is sex not a recognized civil right?

        1. And likewise a person who gives money to some panhandlers is legally obliged to let other panhandlers rob him if he won’t give them what they demand. Equal access! No force involved.

          1. Ar you serious?

            We are talking about public accommodation laws – which apply to businesses offering goods or services to the public for money.

            Because a hotel can’t refuse to rent a room to someone just because they are Black, doesn’t mean you have to make your spare bedroom available to anyone who knocks.

            That’s really not hard to understand, is it?

            1. I’m interested in the claim that “no one has ever been forced to make anything.” This lacks logic. The argument is supposed to be that there’s a higher governmental interest justifying using force against businesses which don’t conduct themselves in a particular way. If that’s not force, then neither are the other examples. In other words, defining the problem away by denying force won’t wash.

              If you insist on a business analogy, I suppose I shouldn’t rely on a traditional American small business, which seems not to get much sympathy around here. What about a professional prostitute who is too choosy about her clients – for example, not selling her “services” to trans people. Can she be forced (yes, forced) to provide such “services”?

              1. Oh, and what is the distinction between that scenario and rape, other than the law says it’s not?

            2. “Because a hotel can’t refuse to rent a room to someone just because they are Black”

              As I recall, the Supreme Court and Congress went to a lot of trouble researching the impact of racial discrimination on interstate travel, made detailed findings that it obstructed interstate commerce, and acted accordingly.

              Now that hard work is no longer deemed necessary – there’s no longer any need to examine the situation in detail and see if a new protected class *really* needs to be added to the law – instead, it’s all decided based on who’s popular at the time and who isn’t.

            3. Which gets us back to the effective mooting of the 9th amendment. Working for a living is an unenumerated civil liberty, one of the privileges and immunities meant to be protected by the 14th amendment, according to Congressional debate.

              As such, you can’t condition exercising it on giving up some other right, such as the right not to be compelled to do involuntary service.

              I really do understand where public accommodation laws came from. The people who originated and failed to strike them down were faced with a truly horrible situation. But it really IS true that hard cases make bad law.

              And this is the worst sort of law, and it would be bad law if it were limited to its original scope. But it isn’t limited to its original scope, it has metastasized, eroded the very concept of the horror of involuntary servitude.

              All the moral compromises committed in the name of civil rights have had that corrosive effect. When you make a moral compromise, and can’t admit that’s what you have done, the damage to your morals is ongoing, it doesn’t stop with the first crack.

        2. You are confusing the obligations of the business with a particular individual and your example makes no sense, the woman is not a public accommodation advertising a product or service to the public so you aren’t using ‘my’ logic at all, this straw man is all your own.

          The business put advertising to a product and service before the public which will be sold regardless of civil rights. Doesn’t matter who fills the order and the ADF argument was all about Stutzman having to handle it. WA AG said in court and publicly Stutzman was not expected to deal with the order.

          ADF petitioned about issues not germane to the actual prosecution so the 3 couldn’t convince anyone else this was a slam dunk case, they’re waiting for an easier one.

  9. Maybe they think that cake decoration will make for better law than floral arrangement. It looks like Masterpiece Cakeshop is on its way back.

    1. That would be a terrible case. it’s a simple sheet cake with pink batter and blue icing, i.e. less artistry than a ham sandwich to make, no particular person need do it. The business agreed to sell that design (message/speech) for a birthday but reneged on the verbal agreement when they found out it would celebrate a trans birthday.

      Pure civil rights discrimination.

      1. NO. Masterpiece Cakeshop makes custom wedding cakes, each one with decorations designed for the particular couple. That’s creative work. This shop has sold ordinary cakes to this same gay couple.

        1. Not true. Their online advertising had a gallery of previously sold designs offering to sell them and even said optional customer-designed alterations to the stock design would be implemented exactly as the customer wanted if requested.

          The store also has a wedding cake book of these stock designs that the customers were actively looking at when told they would be sold any wedding cake design, previously ’created’ or not.

          The ‘creative’ deceit was only possible because the CO prosecution didn’t ask the rights questions that anticipated it. The WA AG did ask questions where the owner admitted they would refuse even orders that had no creative component no matter who handled the order. The Masterpiece Cakeshop avoided the issue by ordering a very simple design and affirming no particular baker was expected to handle the order.

  10. You want a gay floral arrangement? This should fit the bill…..

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