In what could be described by those looking for fun newspaper ledes as the Hot First Amendment Summer, the past two weeks have found the Supreme Court sending two very different messages as to how broadly it is going to interpret the First Amendment and when it will choose to do so.
In Mahanoy Area School District v. B.L., the court held that if you blast your cheerleading team and your school on social media, the school may need to traverse a steep path to show that their interests in preventing student disruption should override your First Amendment rights.
Two weeks later, the court chose not to hear an appeal by a florist in Washington state who refused to make a floral arrangement for a same-sex couple out of her religious objections to same-sex marriage.
This comes only weeks after the court held in Fulton v. City of Philadelphia that the city violated the First Amendment by refusing to contract with Catholic Social Services once it learned that the organization would not certify same-sex couples for adoption.
Critics of the Supreme Court’s refusal to hear State v. Arlene’s Flowers, Inc. argue that the court sidestepped a potentially major case pitting LGBTQ rights against religious liberty. While that’s one way to look at what happened last week, another is that the court isn’t yet ready to hear a case such as this because it is still working to find its ideological and perhaps functional center.
In a “who woulda thunk it” scenario, Amy Coney Barrett has emerged as a particularly strong justice — a debut that has her greatest allies throwing around terms such as “future Chief Justice material.”
While to some, this tale of her maiden voyage on the court may be premature, to say the least, there is no way to argue that she has not caught the attention of pundits on both sides of the ideological divide.
The social media memes over the last week paint Barrett as moving the court slowly and carefully to the right. The Washington Post’s analysis on Friday perfectly captures the zeitgeist:
“Whether [Barrett’s decisions reflect] a rookie justice’s first-term caution or a more-ingrained inclination to moderation and small steps will determine her place among the court’s sometimes splintered six-member conservative majority.”
Barrett’s presence has the practical impact of not only being the vote that led the court to agree to hear landmark gun and abortion cases in the upcoming October 2021 term but also being a surprisingly moderating force within the court in deciding when it should flex and when it should be still.
John Lawlor, a South Florida lawyer, argues that while the court is trying to find its center, it can’t be at the expense of litigants:
“Each Supreme Court decision regarding the First Amendment reverberates throughout the nation. With consistency from case to case it makes life easier for both lower courts and potential litigants as everyone knows where the bar is set.”
Taken as a whole, Mahanoy and Arlene’s Flowers are a perfect example of this. From a distance, it would appear that Arlene’s Flowers was the better case to hear (especially for the support it could have given Fulton) and Mahanoy was the better case to pass on.
No public outcry was going to come from the court passing on hearing this case, especially given that while the Supreme Court was clearly not a fan of the Third Circuit’s reasoning in Mahanoy, it affirmed the decision.
Conversely, hearing Arlene’s Flowers would have been a chance for the court either to draw a line in the sand or to erase a perceived one.
One of the interesting byproducts of the global pandemic in the United States is an increased focus on the importance of small, local businesses. How these mom-and-pop shops behave is absolutely going to be a matter for the courts where state legislatures across the nation continue to test the elasticity of our rights.
Passing on Arlene’s Flowers may be as simple as the court simply not loving the issue or the parties, or it may be a far more complex strategic move.
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