Making Sense of the Relists in Arlene’s Flowers, Dignity Health, and Roman Catholic Diocese of Albany
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 wil
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