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Today’s orders (part 1)

It was a busy day at the Supreme Court today, with the justices’ release of decisions in argued cases and their order allowing at least part of the so-called “travel ban” to go into effect. But even before the justices acted on the travel ban and issued their opinions, they also released orders from last week’s private conference, and the list included some orders that would likely be front-page news on any other day. After a whopping 14 relists, the Supreme Court announced that it will review the case of a Colorado man who contends that requiring him to make wedding cakes for same-sex marriage celebrations would violate his religious beliefs. The court declined, however, to take up an important California gun rights case, over a dissent from Justice Clarence Thomas that was joined by Justice Neil Gorsuch.

One of today’s two grants came in Masterpiece Cakeshop v. Colorado Civil Rights Commission, in which the justices will consider the collision between religious beliefs and laws barring discrimination against LGBTQ people. Masterpiece Cakeshop is a custom-cake business owned by Jack Phillips, who describes himself as a “cake artist.” Phillips argues that Colorado’s public accommodations law violates the First Amendment by requiring him to create custom wedding cakes for same-sex weddings, in violation of his religious beliefs. The business had filed its petition for review nearly a year ago, in July 2016, but a series of delays – ranging from efforts by the commission to waive its right to respond to a request for the lower-court record – meant that the justices did not actually consider the petition at their private conference until February 24. The justices didn’t act on the petition after that conference, nor after the 13 that followed. Because the court had denied a similar petition three years ago, many court watchers attributed the delay to the possibility that one or more of the justices was writing a dissent from the denial of review. But that conventional wisdom proved to be wrong today; the case is likely to be argued in the fall, with a decision on the merits sometime next year.

In addition to the government’s petitions for review of the lower-court rulings blocking the implementation of President Donald Trump’s travel ban, the justices today added a third case to their docket for next term: Digital Realty Trust v. Somers. The case centers on a provision of the Dodd-Frank Act that bars retaliation against whistleblowers who make disclosures that “are required or protected under the Sarbanes-Oxley Act.” The respondent in the case, Paul Somers, worked for Digital Realty Trust, a real estate investment trust specializing in properties for data centers, until he was fired; he filed a lawsuit under the anti-retaliation provision, arguing that he was terminated for making internal complaints protected by the Sarbanes-Oxley Act. The company argued that his claims could not go forward because he had not complained to the Securities and Exchange Commission, as the Dodd-Frank Act’s definition of “whistleblower” requires. A federal district court denied the company’s motion to dismiss, and the U.S. Court of Appeals for the 9th Circuit affirmed.

The justices declined to take up the case of Peruta v. California, in which they had been asked to decide whether the Second Amendment protects the right to carry a handgun outside the home for self-defense. Nine years ago, a divided Supreme Court ruled that the Second Amendment guarantees an individual’s right to have a gun, at least in one’s home. Two years later, the court – once again by a vote of 5-4 – confirmed that the Second Amendment right to bear arms applies fully to the states as well as the federal government. Since then, however, the court has been reluctant to take on other gun rights cases, and it had denied other cases presenting very similar issues. So it was not entirely a surprise when, after relisting the case seven times, the court announced that it had denied review.

Justice Clarence Thomas, joined by Justice Neil Gorsuch, dissented from the denial of review and would have granted the petition. Thomas complained that, even if other justices “do not agree that the Second Amendment likely protects a right” to carry a gun in public, “the time has come for the Court to answer this important question definitively.” Moreover, he added, the denial of review “reflects a distressing trend: the treatment of the Second Amendment as a disfavored right.” “For those of us who work in marbled halls,” he concluded, “guarded constantly by a vigilant and dedicated police force, the guarantees of the Second Amendment might seem antiquated and superfluous.” But, he continued, “the Framers made a clear choice: They reserved to all Americans the right to bear arms for self-defense. I do not think we should stand idly by while a State denies its citizens that right, particularly when their very lives may depend on it.”

The justices also summarily reversed a decision by the Arkansas Supreme Court on the rights of same-sex parents to be listed on their children’s birth certificates. The case arose when two married same-sex couples had daughters in the state in 2015 using anonymous sperm donors. The couples asked to have both women’s names on the birth certificate when the children were born, but only the birth mothers were listed. By contrast, state law requires a married woman’s husband to be listed as the second parent on the child’s birth certificate, even if he is not the child’s biological parent.

Today the Supreme Court, in an unsigned opinion issued without briefing on the merits or oral argument, ruled that the different treatment of married same-sex and opposite-sex couples violates the Constitution by denying same-sex couples “the constellation of benefits that the State has linked to marriage.” The court rejected the state’s argument that which parents are listed on a child’s birth certificate doesn’t have anything to do with marriage but is instead just a way to memorialize a child’s parentage. “Arkansas law,” the court explained, “makes birth certificates about more than just genetics” – particularly when married men must be listed on their child’s birth certificate even if they are not their child’s biological father.

Gorsuch dissented from today’s summary ruling, in an opinion joined by Thomas and Justice Samuel Alito. In his view, the court should overturn a lower court’s ruling without briefing and oral argument only when “the law is settled and stable, the facts are not dispute, and the decision below is clearly in error” – criteria that this case cannot meet. Gorsuch acknowledged that the court’s 2015 decision in Obergefell v. Hodges “addressed the question whether a State must recognize same-sex marriages.” But, he continued, that ruling did not say anything about birth certificates for the children of same-sex couples.


Recommended Citation: Amy Howe, Today’s orders (part 1), SCOTUSblog (Jun. 26, 2017, 7:17 PM),