It’s deja vu: A Republican president (Nixon, Reagan, the first Bush, Trump) has a historic opportunity to appoint several justices to the Supreme Court, creating the expectation that the Court will push back on an advancing body of law that the president’s supporters perceive as threatening fundamental constitutional commitments. But when the time comes, the justices waffle, or dodge, or disappear—which is what happened again on Friday, when the justices declined to review the case of Arlene’s Flowers v. Washington.
First, a bit of background. Public accommodations laws that guarantee equal treatment for same-sex couples can often tread on essential freedoms of religion and speech. Typically, the litigated cases involve a Christian wedding photographer, custom baker, or florist who is happy to serve any customer regardless of sexual orientation, but objects on religious grounds to creating a particular product or service—a custom-designed cake, a floral arrangement—that expressively celebrates a same-sex wedding.
In Arlene’s Flowers, the vendor is a Washington florist, Barronelle Stutzman. For many years, Stutzman had sold flowers to a customer, Rob Ingersoll, while aware that he was gay. But when Ingersoll asked her to do the floral arrangements for his wedding to his same-sex partner, Stutzman politely declined and referred him to several other florists. She was then sued by Ingersoll and his partner and the state of Washington. The plaintiffs sought $7.91 in damages (for the cost of driving to another florist) and an injunction enjoining Stutzman from declining to do same-sex weddings.
In Stutzman’s case, as in the other leading cases, everyone has conceded that the vendor’s religious objection is sincere; it is not a pretext to avoid serving LGBT customers. So the burden on the vendor’s religious commitments is straightforward.
The conflict with freedom of speech is slightly more subtle. A central tenet of free speech doctrine is the freedom not to speak: No one should be compelled to express something that she does not believe. As Thomas Jefferson put it, it is “sinful and tyrannical” to compel someone to support “the propagation of opinions which he disbelieves.” But in the wedding vendor cases, the message, or the expressive element, is the only thing that either side cares about. The vendor, though willing to serve any customer, objects to creating a product that she believes expresses approval of same-sex marriage. For their part, the customers have had no difficulty getting the product or service they desire from other vendors. It is not the loss of a product or service that they complain of, but rather the “dignitary harm” entailed by the vendor’s expression of disapproval of their same-sex union.
So there are vital First Amendment questions in the balance. The Supreme Court had an opportunity to resolve these questions three years ago in Masterpiece Cakeshop v. Colorado. But in that decision, the Court seized on some case-specific facts (of questionable relevance) to avoid deciding the central issues. That was hardly a surprise. Justice Anthony Kennedy, who wrote the majority opinion, was on the brink of retirement, and he predictably was unwilling in his last term to compromise his legacy as a champion of gay rights.
Since then, however, Justices Kennedy and Ginsburg have been replaced by Justices Kavanaugh and Barrett. So there was good reason to hope that the Court would now take on the nagging, vital First Amendment questions. And Arlene’s Flowers provided a prime opportunity to do so.
The Court’s anticlimactic decision last month in Fulton v. Philadelphia gave observers another reason to hope that the justices would take on Arlene’s Flowers. In Fulton, a case about foster child services, the justices found an exquisitely narrow (and easily defeasible) ground to rule in favor of Catholic Social Services while ducking the larger issue of whether the First Amendment’s free exercise clause requires accommodation of religion. In Arlene’s Flowers, by contrast, Stutzman had been held liable in the Washington courts, and no finicky means of evasion had been proposed. So the justices could not skirt the free exercise issue.
Nonetheless, on Friday, the Court declined without explanation to take up Arlene’s Flowers. Justices Thomas, Alito, and Gorsuch went on record as supporting review, and since four votes are enough to accept a case, it is evident that the new justices—Kavanaugh and Barrett—chose to deny Stutzman’s appeal and to let the judgment against her stand.
Since the Court gave no explanation for its refusal, it is difficult to know just what to make of this dismissal. Have Kavanaugh and Barrett decided to side with the antidiscrimination agenda at the expense of constitutional free exercise and free speech commitments? Did these justices consider it prudent to keep their heads down because they are relatively new to the Court? Is the prospect of heavy criticism from the cultural, legal, and academic mainstream too daunting (as it arguably was earlier for justices like Kennedy and Souter)? Do these justices have some larger strategy or agenda or jurisprudential trade-off in mind?
It is possible that some conservative justices—Kavanaugh, Barrett, maybe Roberts—are more interested in protecting institutional religion and institutional religious freedom than in standing up for the lone Christian dissenter like Barronelle Stutzman. The Court has been active in rejecting state limitations on the funding of religious schools. And going back almost a decade to the historic Hosanna-Tabor case (written by Chief Justice Roberts), the Court has been relatively steadfast in recognizing the so-called “ministerial exception,” which helps to insulate religious institutions against interference from antidiscrimination and disabilities laws in the selection of some of their mission-serving officers and employees. Those (like myself) who regard the “freedom of the church” as crucial can take some comfort in these decisions.
But this will be small consolation for the individual Christian, like Barronelle Stutzman, who merely wants to follow Christ’s teachings and cheerfully serve anyone so long as she is not compelled to affirm those aspects of the culture that are contrary to her faith.
Steven D. Smith is a Warren Distinguished Professor of Law at the University of San Diego
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