The Volokh Conspiracy
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Following the long conference order list, the Court relisted three religious liberty cases: Arlene's Flowers Inc. v. Washington, Dignity Health, Inc. v. Minton, and Roman Catholic Diocese of Albany v. Lacewell These cases may simmer on the shadow docket for some time.
Will Arlene's Flowers Bloom Again?
Last term, Justices Thomas, Alito, and Gorsuch would have granted review in the long-running Arlene's Flowers case. Alas, Justices Kavanaugh and Barrett let Arlene's Flowers wilt. But as Yogi Berra said, the case ain't over till the mandate issues. After cert was denied, the petitioner's filed a petition for rehearing. Usually, these petitions are summarily denied. But this petition had a fighting chance.
On July 26, the Tenth Circuit decided 303 Creative LLC v. Elenis. This case held that a web developer can be required to build a website for a same-sex wedding. Eugene wrote about this case here. This case presents a much cleaner vehicle to address the compelled speech issue. For example, Eugene contended that floral arrangements are not speech, but he contended that a website is speech. On July 27–only a day after 303 Creative was decided–Baronelle Stutzman filed her petition for rehearing. She urged the Court to grant cert, or in the alternative, hold her petition until 303 Creative is decided for a GVR:
This Court should reconsider its denial of Barronelle's petition and either grant the petition outright or hold it for consideration with the 303 Creative petition that is forthcoming later this year. (Barronelle's counsel also serves as counsel to 303 Creative and represents to the Court that a petition will be filed). If the latter, the Court will have the option of granting both petitions and consolidating the cases, or granting one petition and holding the other for a GVR.
The cert petition was filed in 303 Creative on September 24. And Stutzman notified the Court that this petition was filed. The reply in 303 Creative is due on October 28. The respondent may ask for an extension. But, in all likelihood, the case can be granted by December or January. And the Court could decide the First Amendment case by June. Or the Court could drag out the process, grant cert in February, and hear the case in OT 2022. (This term is already going to be hectic). Assuming the Court reverses in 303 Creative, the Court could then GVR Arlene's Flowers in June 2022 or even June 2023! That would the second GVR for Stutzman. The first came after Masterpiece Cakeshop in June 2018. Has any case ever been GVR'd twice, five years apart, without a merits ruling? That must be some kind of record. It is remarkable this case will be floating around for nearly a decade. I can't even fathom what the attorney's fees would look like. But this stratagem would give Justices Kavanaugh and Barrett another shot to keep the case alive.
Still, a GVR would not likely give Stutzman any relief. After Masterpiece, the Washington Supreme Court reaffirmed its prior opinion based on the Free Exercise Clause. If the Court GVRs on the Free Speech Clause in 303 Creative, the Washington Supreme Court would likely reaffirm its prior decision. Baronelle will be back at the Supreme Court in 2024 or so. By that point, the Court may have already granted cert in Masterpiece Cakeshop II! And the Court can hold Arlene's Flowers for a third GVR. Jack Phillips and Baronelle Stutzman can have a cert party. I am mostly joking.
Dignity Health and Roman Catholic Diocese of Albany
Dignity Health, Inc. v. Minton presents the question whether a California Catholic hospital can be required to perform a hysterectomy on a transgender patient. The cert petition was filed in March 2020. It was relisted several times, and on July 1, 2020, was rescheduled for the long conference. And after the long conference, it was relisted again. If there was a dissent from denial of cert, it probably would have already come. Rather, the Justices may be holding this case in light of another petition.
John Elwood suggests that the Court is holding Dignity Health in light of Roman Catholic Diocese of Albany v. Lacewell. Here, New York mandates that insurance policies cover abortions. Roman Catholic Diocese squarely calls on the Court to overrule Smith. Even if the Court stops short of that outcome, but reverses in the New York case, it can still (you guessed it) GVR Dignity Health. Ultimately, Dignity Health can simmer on the shadow docket for some time. And Roman Catholic Diocese may go through a waiting period before the Court grants. The Justices may not want yet another abortion case for the docket this term.
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