No new guidance from Supreme Court on gay marriage, gerrymanders

Choosing – for now – to go to the sidelines on two highly controversial constitutional issues, the Supreme Court on Monday turned aside cases that could have given lower courts some new guidance on the rights of married gay couples and on the validity of partisan gerrymandering.

In brief orders, the Court sent the cases back to lower tribunals with orders to consider how to apply major Supreme Court rulings this term on those two disputed issues.  Because both of the prior rulings reached no definitive outcomes, the Justices provided no reliable clues on what is to happen next.

Since its decision June 4 in a Colorado case involving a baker’s religion-based refusal to make a special cake for a gay couples’ wedding reception, the Justices had repeatedly examined a sequel case from Washington State, involving a florist who declined for reasons of faith to create floral displays for a gay couple’s wedding.

The options were open to the Justices either to grant review of the case – Arlene’s Flowers v. Washington – or to return it to lower courts for a new look, or to deny it outright.  Granting review would have set the case for hearing and decision next term, and immediately plunged the Justices back into the center of the still-spreading controversy that pits religious faith with the rights of gays and lesbians.  It would have taken four votes to do that, and those votes apparently were not available.

An outright denial of review would have given the gay couple a clear-cut victory, because the Washington Supreme Court had ruled explicitly that their rights to legal equality in commercial dealings had been violated.  It would thus have been a total loss for the woman owner of the flower shop in Richland, Wash.   That could have occurred if four votes for review were missing, or no one wanted the case to end so abruptly.

In what appeared to be a compromise, the Court chose to wipe out the state court’s ruling, and to order that tribunal to reexamine its decision by taking into account the decision of three weeks ago in the wedding cake case.  That case was decided based upon the specific facts, which the Justices found to show religious bias on the part of the state civil rights commission that had ruled against the baker.

In the florist’s case, there is now a dispute over whether there were indications of that bias in her case.  There were no claims of that when the case was going through the state courts, and the dispute arose in the Supreme Court only after both sides filed added legal briefs to comment on the impact of the Colorado ruling.   That dispute apparently was enough to give the Justices a way to take the action they did on Monday.

The partisan gerrymandering case that the Justices returned to a lower federal court for a new look involved a 2016 redistricting of North Carolina’s 13 seats in the U.S. House of Representatives.  The plan, devised by Republican lawmakers with what was claimed to be explicit plans to maximize their party candidates’ chances, resulted in the GOP winning 10 of those 13 seats.

After a special three-judge federal district court struck down the plan, as a violation of the federal Constitution, state officials appealed to the Supreme Court.   The Justices refused to put the case on a fast-track to be decided this term along with two other cases involving the constitutionality of the centuries-old practice of drawing election boundaries to favor one party, and the Justices also blocked the lower court order requiring the prompt adoption of a substitute plan.

The two cases under review on that issue – challenging a state legislative election map from Wisconsin that favored Republicans and a new map for a single U.S. House of Representatives district in Maryland that favored Democrats – were decided last week.

The only clear legal outcome of the Wisconsin case – which was returned to lower courts for a new review – was that the Court majority declared that partisan gerrymandering claims made by individual voters under legal equality principles could only be pursued on a district-by-district basis, rather than as a statewide challenge.  (The Maryland case was even less definitive, resulting in a narrow ruling simply setting the stage for a three-judge federal court to hold a full trial on the partisanship question.)

In the new North Carolina case (Rucho v. Common Cause), the federal three-judge court had ruled against the GOP in a case involving a statewide claim, not one focused on voters’ rights in individual districts.  That facet of the case had been challenged explicitly in the appeal to the Justices, so it was entirely to be expected that, as occurred Monday, the case was returned to the lower court to apply the new Wisconsin ruling.

The result of the several actions the Justices have now taken on the partisan gerrymandering question, is that there will be no new guidance from the Supreme Court until at least after this year’s elections, in November.