It was like punting after a punt — raising questions about the careful path the court is treading this term.
One of the biggest: whether the delay is related to the plans of Justice Anthony M. Kennedy, a pivotal vote whose future on the bench is a matter of intense speculation. Kennedy, who will turn 82 on July 23, may decide to retire, and the court is sometimes reluctant to take controversial cases when the ideologically divided justices don’t know who will decide them next term.
The answer could come this week as the court finishes its work for this term with decisions expected about President Trump’s ban on travelers from certain mostly-Muslim countries and a long-delayed showdown on public employee unions.
If there was a message in the court’s actions Monday, it did not explain it. That’s how the court often operates.
And sometimes the simplest explanation is the right one. The court often returns cases to lower courts when they touch on issues just considered.
“We expected this procedural step,” Washington Attorney General Bob Ferguson said in a statement Monday after the court vacated a finding by the Washington State Supreme Court that florist Barronelle Stutzman had violated the state’s anti-discrimination law.
Ferguson said he was confident that after state court justices apply the U.S. Supreme Court’s decision earlier this month in Masterpiece Cakeshop v. Colorado Civil Rights Commission, they “will come to the same conclusion they did in their previous, unanimous ruling upholding the civil rights of same-sex couples in our state.”
Kennedy wrote Masterpiece, but offered little about the merits of the case. Instead, it relied on a fact-specific finding: that members of the Colorado Civil Rights Commission had been improperly hostile to baker Jack C. Phillips’s religious justifications for refusing to make a wedding cake for a same-sex couple.
The decision left undecided whether a business owner’s religious beliefs or free-speech rights can justify refusing some services to gay people.
The ruling expressed constitutional concern for deeply held religious beliefs on one hand, and protection for same-sex couples on the other, “lest all purveyors of goods and services who object to gay marriages for moral and religious reasons in effect be allowed to put up signs saying ‘no goods or services will be sold if they will be used for gay marriages,’ something that would impose a serious stigma on gay persons.”
Meanwhile, the justices had been holding the Washington state florist case for months and faced three choices: grant Stutzman’s petition and hear the case in the term that will begin in October; decline the case and leave in place the Washington Supreme Court opinion; or send it back to the state court with instructions to rehear the case in light of the Masterpiece decision.
There is little dispute about the facts. Stutzman had counted Robert Ingersoll as a customer for nearly a decade when he came in one day in 2013 and said he wanted to talk about flowers for his wedding to his longtime partner, Curt Freed. Stutzman said she held his hand and told him she had to decline his request because of her “relationship with Jesus Christ.”
Ingersoll and Freed sued Stutzman, as did the state.
On Monday, Stutzman said in a conference call with reporters that Ferguson “targeted” her for her religious beliefs. And her attorney, Kristen Waggoner of the Alliance Defending Freedom, who also represented Phillips, said Ferguson’s decision to bring a complaint against Stutzman as well as against her business showed “government hostility.”
Ferguson said religious animosity played no role in his or the court’s decision.
In its ruling, the Washington Supreme Court said it agreed with the couple’s assertion in a brief that “this case is no more about access to flowers than civil rights cases in the 1960s were about access to sandwiches.”
It added that public accommodation laws “serve a broader societal purpose: eradicating barriers to the equal treatment of all citizens in the commercial marketplace. Were we to carve out a patchwork of exceptions for ostensibly justified discrimination, that purpose would be fatally undermined.”
If both sides of the debate have claimed that the Masterpiece ruling supports them, one court has applied the decision in siding with same-sex couples. The Arizona Court of Appeals quoted the ruling extensively in upholding a Phoenix anti-discrimination law similar to those in Colorado and Washington.
The case the court sent back Monday is Arlene’s Flowers v. Washington.
The Supreme Court’s decision on a long-running gerrymandering case from North Carolina followed a similar pattern as Stutzman’s case.
It centers on a major question that the justices have yet to rule on: whether the drawing of a district map can be so infected by politics that it violates voters’ constitutional rights.
The justices considered that the issue this term in a case from Wisconsin, but passed over the question after finding that the plaintiffs in Gill v. Whitford did not have legal standing to bring the challenge.
On Monday, the court sent back the case involving North Carolina’s congressional districts for a lower court to apply Gill.
Common Cause, which brought the North Carolina case, said it is confident that it meets the legal standing requirement because it has plaintiffs in each of the 13 congressional districts. The state contends otherwise, saying the plaintiffs pressed a statewide challenge of vote dilution, which it says Gill does not allow.
The controversy surrounding the North Carolina map makes it likely that “the case could be back before the Supreme Court for the next term (even if that next term does not include Justice Kennedy),” Richard Hasen, a voting law expert at the University of California at Irvine, wrote on his blog.
North Carolina’s Republican-led legislature drew a map that gave advantages to Republicans in 10 of the state’s 13 congressional districts. The GOP’s domination of the congressional delegation belies North Carolina’s recent history as a battleground state. It has a Democratic governor and attorney general, who have declined to defend the maps.
When a three-judge panel invalidated the map of congressional districts, it became the first to strike a congressional map on the grounds that it was rigged in favor of a political party.
North Carolina has a past at the Supreme Court — the state’s past redistricting plans have been struck down as racial gerrymanders. So when the state legislature adopted new plans in 2016, Republican leaders made clear they were drawing the lines to help their party, instead of basing their decisions on racial data.
“I think electing Republicans is better than electing Democrats,”
Rep. David Lewis (R), a member of the North Carolina General Assembly, said in 2016. “So I drew this map to help foster what I think is better for the country.”
He added: “I propose that we draw the maps to give a partisan advantage to 10 Republicans and 3 Democrats because I do not believe it’s possible to draw a map with 11 Republicans and 2 Democrats.”
When voters went to the polls that fall, the outcome was exactly as Lewis had predicted, even though Republicans won just 53 percent of the statewide vote.
The “goal of this plan was to make Democratic votes count less than Republican votes,” said Ben Thorpe, a lawyer for Common Cause. “This is as extreme as partisan gerrymandering gets. If this case is not the limit, then there may be no limit.”
The case is Rucho v. Common Cause.
Ann E. Marimow contributed to this report.