Supreme Court October Term 2017: A Preview of Select Cases
Released: 2017-09-19T00:00:00

O n October 2, 2017, the Supreme Court is to begin its new term. While the Court issued a number of notable decisions during its last full term, Court watchers have largely agreed that, at least compared to recent terms, the Court's October 2016 term was diminished both with regard to volume and content. The Court during the October 2016 term issued seventy written opinions and heard oral arguments in sixty-four cases, amounting to the lightest docket for the Court since at least the Civil War era. Unlike recent terms in which the Supreme Court issued major rulings on often-contentious issues like same-sex marriage, affirmative action, and abortion, legal commentators have noted that, in contrast, the October 2016 term did not include any cases that would tend to generate a comparable level of interest from the general public.

The makeup of the Court appears to have directly affected the nature of the Court's most recently completed term. From the beginning of the term until April 2017, the Court was staffed by eight, rather than nine, Justices. As a result, the Court necessarily lacked an additional vote that could have allowed for additional cases to be granted for review or broken a tie in a relatively close case. And, in recent talks, Justices Samuel Alito and Elena Kagan both independently intimated that the eight-member Supreme Court actively worked during the past term to issue rulings in which the Court could find common ground to avoid 4-4 splits. The Court's efforts toward compromise and consensus during the October 2016 term may be evidenced in the number of unanimous rulings from the Court over the past year, with all of the Justices agreeing to the final judgment of the Court in 59% of the opinions issued during the October 2016 term.

The open question is whether the Court—now with a full complement of Justices with Justice Neil Gorsuch's appointment in April 2017—will continue to find common ground at the same rate it did during the past term. With the Court already accepting over 30 cases, many of which raise difficult questions in various areas of law, the October 2017 has the potential to be one of the most consequential in years. For example, the Court has already agreed to hear:

a major elections law case exploring the scope of a state's authority under the National Voter Registration Act of 1993 and the Help America Vote Act of 2002 to maintain voter rolls and remove inactive voters; a follow-up to a closely watched 2013 case exploring whether a foreign corporation can be sued under the Alien Tort Statute; a case on whether President Trump's March 6, 2017, executive order limiting certain foreign nationals and refugees from traveling to the United States violates the Establishment Clause of the First Amendment and exceeds the President's authority to restrict the entry of aliens; and a group of consolidated cases examining whether agreements to resolve employment-related disputes through individual arbitration, and waive class and collective proceedings, are enforceable under the Federal Arbitration Act and the National Labor Relations Act.

A full discussion of these cases and others that the Supreme Court will hear during its upcoming term is beyond the scope of this report (indeed, the Court has to grant certiorari to the majority of cases that will likely make up its docket for the upcoming year). But Table 1 provides brief summaries of the cases the Court has already agreed to hear during the October 2017 term, and many of the cases on the Court's docket are discussed in existing or forthcoming CRS products. The majority of this report highlights four of the notable cases of the new term that could impact the work of Congress: (1) Carpenter v. United States , which examines the limits the Fourth Amendment imposes on the warrantless collection of the historical cell phone location records of a criminal suspect; (2) Christie v. National Collegiate Athletic Association (NCAA) , a case exploring whether Congress, by prohibiting a state from partially repealing a state law, impermissibly commandeers the powers of the state; (3) Gill v. Whitford , which considers when a state's redistricting plan amounts to impermissible partisan gerrymandering; and (4) Masterpiece Cakeshop v. Colorado Civil Rights Commission , which asks whether a baker has a First Amendment right to decline to make cakes for same-sex weddings. Each case is addressed in a separate section below that (1) provides background information on the case; (2) summarizes the arguments that were or are likely to be presented to the Court in each case; and (3) examines the implications that the Court's ruling could have for Congress, including broader ramifications for the jurisprudence in a given area of law.

Fourth Amendment: Carpenter v. United States

Carpenter v. United States raises the question whether the government's collection of historical cell phone location data without a warrant violates the Fourth Amendment of the Constitution. The case could decide whether cell phone users have a protected Fourth Amendment privacy interest in the trove of location data held by their wireless carriers.

The Fourth Amendment prohibits "unreasonable searches and seizures," which generally requires the government to obtain a warrant before conducting a "search." A "search" occurs if a government investigative measure violates a person's reasonable expectation of privacy. Thus, as the Supreme Court held in the landmark 1967 case, Katz v. United States , law enforcement officers contravene the Fourth Amendment if they attach a listening and recording device to a public telephone booth to listen to a suspect's conversations without a warrant. Importantly, however, the Supreme Court, under what is known as the third-party doctrine, has held that no reasonable expectation of privacy exists as to information that a person discloses voluntarily to third parties. Thus, the Court held in a 1976 case, United States v. Miller , that police do not violate the Fourth Amendment by obtaining microfilms of a suspect's account statements and deposit slips from his bank without a warrant because the suspect has voluntarily disclosed the information contained in those documents to the bank. Similarly, the Court determined in a 1979 case, Smith v. Maryland , that police do not violate the Fourth Amendment if, without a warrant, they ask a telephone company to install a "pen register" in its central office to record the phone numbers dialed from a suspect's home phone. The Court reasoned in Smith that because the suspect voluntarily conveys the numbers to the phone company when he dials them, he cannot reasonably expect such information to remain secret.

Carpenter poses questions about how the third-party doctrine applies to more modern technology. The petitioner in Carpenter was convicted of a series of robberies. At trial, to tie him to the general location where the robberies took place, the government presented data about the towers to which his cell phone connected during calls made around the time of the robberies. Such data is known as cell site location information (CSLI). Instead of acquiring a warrant supported by probable cause, the government obtained Carpenter's CSLI from his wireless carrier under Section 2703(d) of the Stored Communications Act (SCA) of 1986. That provision allows the government to obtain a court order for wire or electronic communication records by offering "specific and articulable facts showing that there are reasonable grounds to believe" that the records "are relevant and material to an ongoing investigation." The probable cause needed for a warrant, in contrast, imposes a higher standard on the government. Carpenter moved to exclude the CSLI evidence on Fourth Amendment grounds, but the trial court denied the motion and the federal Court of Appeals for the Sixth Circuit (Sixth Circuit) affirmed.

In Carpenter's case, the Sixth Circuit, relying on the third-party doctrine, held that the government's warrantless collection of the historical CSLI did not constitute a Fourth Amendment search. Just as a person does not have a protected privacy interest in dialed phone numbers, the circuit court reasoned, Carpenter did not have a protected interest in the location data that his phone transmitted to his carrier. The court framed the distinction as one between the "content of personal communications" and the "routing information" that transmission of those communications reveals: a reasonable expectation of privacy generally exists as to the first, but not the second type of information.

The Sixth Circuit decision aligns with decisions of other federal appellate courts rejecting Fourth Amendment challenges to the warrantless collection of historical CSLI. But some judges on these courts, while accepting that the Supreme Court's third-party cases require this outcome, have nonetheless voiced doubts as to whether cases about phone booths, pen registers, and microfilm provide an adequate framework for analyzing privacy expectations in the smartphone era. One of the Sixth Circuit judges who decided Carpenter went even further. In a concurring opinion expressing disapproval of "the nature of the tests [courts] apply in this rapidly changing area of technology," the judge declined to apply the third-party cases. Instead, she declined to join the majority opinion holding that no Fourth Amendment search had occurred and, instead, voted to uphold Carpenter's convictions on an independent ground.

Ultimately, only the Supreme Court can determine whether its third-party disclosure precedents should be retained, discarded, or modified to account for technological developments. The Court has considered Fourth Amendment cases about searches in the context of more modern technology in recent years, but it has largely avoided making major doctrinal pronouncements. In perhaps the most relevant case, United States v. Jones , the Court held that police violated the Fourth Amendment by attaching a Global Positioning System (GPS) tracking device to a suspect's vehicle to track his movements for 28 days. The majority opinion did not apply the "reasonable expectation of privacy" test. Instead, it made a much more limited holding under a theory of physical trespass: that a Fourth Amendment violation occurred when the police physically attached a GPS device to a vehicle without the suspect's consent. However, five Justices authored or joined concurring opinions concluding (in the case of four Justices) or expressing approval of the conclusion (in the case of the fifth concurring Justice) that the warrantless tracking violated the suspect's reasonable expectations of privacy. Jones did not implicate the third-party doctrine because the government tracked the defendant's location directly, through its own GPS device. Nonetheless, the sensitivity that the five concurring Justices showed to the privacy concerns inherent in warrantless location tracking suggests that they may not be willing to view the warrantless collection of CSLI as a simple issue under the third-party disclosure doctrine.

Depending on the Supreme Court's decision in Carpenter , the case could prompt judicial calls for congressional action. Justice Alito made such a call in his concurring opinion in Jones when he argued that the legislative branch is in the best position to balance privacy concerns against law enforcement requirements, particularly in "circumstances involving dramatic technological change." As the prime example of such legislative action, he pointed to the Wiretap Act (Title III of the Omnibus Crime Control and Safe Streets Act), which largely displaced constitutional case law in setting boundaries on law enforcement use of wiretaps. One might argue that the SCA—the statute under which the government obtained the court orders for Carpenter's CSLI after demonstrating "reasonable grounds to believe" that the data would be relevant to the robbery investigation—constitutes a similar example of the legislature attempting to balance privacy and law enforcement concerns. But the SCA was enacted in 1986, and the relevant provision has not undergone substantive amendment since 1994, before cell sites proliferated on the American landscape. Whether the SCA strikes a compelling legislative balance between the privacy concerns and law enforcement interests implicated by modern CSLI collection is a question likely to figure prominently in the Court's decision.

Federalism: Christie v. National Collegiate Athletic Association

In Christie v. NCAA , the Supreme Court is asked to consider whether a federal statute understood to bar the partial repeal of New Jersey's sports gambling prohibition runs afoul of the Tenth Amendment. The Court's resolution of this case could be consequential not only for federal regulation of sports gambling, but also more broadly for the anti-commandeering doctrine, which generally prohibits the federal government from directly compelling states to enact or carry out a federal regulatory program.

The Supremacy Clause of the Constitution establishes that properly enacted federal laws, treaties, and the Constitution itself are "the supreme Law of the Land." Accordingly, federal law may displace otherwise valid, but conflicting state actions. The Court has "long recognized" that federal law can preempt state regulation of a particular activity in whole or in part, and federal law can also permissibly condition a state's ability to regulate an activity upon conformity with federal standards.

But while the federal government has broad authority to influence or constrain state activities, the Supreme Court has recognized that "the States retain substantial sovereign powers under our constitutional scheme, powers with which Congress does not readily interfere." The anti-commandeering doctrine, which is derived from the Tenth Amendment's recognition of the states' separate and residual sovereignty, prohibits Congress from directly compelling the state political branches to perform regulatory functions on the federal government's behalf. In New York v. United States , for example, the Court struck down a federal law requiring states to either adopt a federal regulatory program or take title to low-level radioactive waste. While the Constitution confers Congress with broad power "to pass laws requiring or prohibiting certain acts" by private actors, the Court declared in New York that the federal government "lacks the power directly to compel the States to require or prohibit those acts." As a result, by either requiring the state to adopt certain laws or take possession of low-level radioactive waste, the law in question unconstitutionally commandeered the states' legislative branches. Five years later, in Printz v. United States , the Court extended these anti-commandeering principles to state executive officials, holding that a law requiring gun background checks to be performed by state law enforcement officers unconstitutionally "conscripted the States' officers directly."

In Christie , the Court may provide further clarity as to where the line is drawn between the permissible preemption of state regulatory activity and the impermissible conscription of a state's political branches into the service of the federal government. The case concerns the interplay between the Professional and Amateur Sports Protection Act of 1992 (PASPA) —a federal statute that, among other things, makes it unlawful for most states to "authorize by law" sports gambling —and a 2014 New Jersey statute that partially repeals the state's prohibition on such activity. The selective repeal effectively allows sports gambling to occur at most New Jersey casinos and racetracks without state penalty, while maintaining restrictions on (1) sports gambling at other locations, (2) gambling on New Jersey sporting events and collegiate teams, and (3) gambling by persons under the age of 21.

The NCAA and other sports leagues challenged the New Jersey law as impermissible under PASPA, obtaining a federal district court injunction barring the state repeal from taking effect. Sitting en banc, the U.S. Court of Appeals for the Third Circuit (Third Circuit) upheld the injunction. The en banc majority characterized New Jersey's partial repeal of its sports gambling prohibitions as an "artfully couched" authorization, "selectively dictating where sports gambling may occur, who may place bets in such gambling, and which athletic contests are permissible subjects for such gambling." The Third Circuit held that the 2014 New Jersey statute functionally "authorize[d] by law" sports gambling in contravention of the federal statute.

The Third Circuit was unpersuaded by New Jersey's argument that PASPA unconstitutionally commandeered the state's legislative process. The circuit court observed that PASPA did not compel New Jersey to "pass laws ... or in any other way enforce federal laws." Nor did the federal statute, in the en banc majority's view, establish a "coercive binary choice" for New Jersey between maintaining a blanket prohibition on sports gambling and completely repealing all sports-gambling regulations. The majority stated that "not all partial repeals are equal" and suggested that New Jersey might retain discretion to selectively repeal sports gambling restrictions in ways that would not conflict with PASPA. While the court did not explain which sorts of partial repeals would be permissible under PASPA, it noted that "a state's partial repeal of a sports wagering ban to allow de minimis wagers between friends and family would not have nearly the type of authorizing effect" as the 2014 law.

New Jersey subsequently sought Supreme Court review of the Third Circuit decision, arguing that PASPA unconstitutionally commandeered New Jersey's legislative process. According to New Jersey, a federal statute that prevents a state from repealing its laws, in whole or in part, is no less susceptible to anti-commandeering challenges than a federal law requiring a state to enact a law: "in either case, the [S]tate is being forced to regulate conduct that it prefers to leave unregulated." The Supreme Court granted certiorari to consider whether PASPA violates the anti-commandeering doctrine.

Christie presents the Court with challenging questions. On the one hand, the Court has made clear that Congress has the authority to displace state laws regulating private activity. But PASPA, as construed in the Christie litigation, is arguably unique insofar as it may bar states from partially repealing laws in a fashion deemed to undermine a federal policy. However, a decision holding that Congress cannot require a state to maintain laws it wishes to repeal could arguably license creative attempts by states to circumvent federal regulation in other areas. If such a rule were adopted, a state could possibly, for example, repeal taxes on in-state electricity producers but not on out-of-state producers, frustrating a federal statute barring such discriminatory electricity taxes.

Moreover, a decision in New Jersey's favor may have significant ramifications for the federal regulation of sports gambling. If the Court were to strike down PASPA in its entirety, as New Jersey argues it should, it would eliminate the federal government's extant regulations of intrastate sports gambling. But the Court has other options. It may hold that PASPA's prohibition of the "authoriz[ation]" of sports gambling is severable from its rule against governmental entities sponsoring, operating, advertising, promoting, or licensing sports gambling, leaving those federal regulations in place. And even if the Court were to strike down the entire subsection of PASPA concerning governmental entities, it may sever that subsection from a provision regulating participation in sports gambling by private persons. That provision makes it unlawful for "person[s] to sponsor, operate, advertise, or promote" various forms of sports gambling "pursuant to the law or compact of a governmental entity." Whether the relevant activities would qualify as being undertaken "pursuant to" the 2014 New Jersey law is unclear, and that question has been contested in this litigation. Should the Court strike down the challenged provision of PASPA but leave its provision concerning private persons intact, there is likely to be additional litigation over that provision's scope that will determine the new boundaries of federal sports-gambling regulation.

A decision affirming the Third Circuit would also require the Court to confront difficult questions. The circuit court rejected New Jersey's anti-commandeering argument because it held that PASPA does not compel states to take affirmative action or present them with a "coercive binary choice" between maintaining existing sports-gambling bans and totally repealing them. But while the circuit court suggested that some partial repeals, such as one allowing for de minimis wagering between friends and family, would not necessarily constitute "authoriz[ation]" of sports gambling in violation of PASPA, the court declined to explain what types of selective repeals would be allowed. Nor did the Third Circuit explain why other selective repeals would more likely comply with PASPA than the New Jersey statute, or why the availability of such alternatives would provide New Jersey with sufficient leeway in setting its own policies to pass constitutional muster. If the High Court opts to address these issues, its explanation of the degree of flexibility federal preemption statutes must provide states to avoid commandeering problems could affect how Congress structures preemption statutes going forward. A decision affirming the Third Circuit may also affect the federal government's ability to pursue its goals in other regulatory arenas. For example, if the Court were to approve of PASPA as construed by the Third Circuit, the federal government may be able to regulate other areas like recreational marijuana or the concealed carrying of firearms by freezing existing state laws in place, instead of through direct federal regulation.

Redistricting: Gill v. Whitford

On October 3, 2017, the Supreme Court will hear oral arguments in Gill v. Whitford , a case that could significantly impact how congressional and state legislative redistricting maps are drawn. In Gill , the Court has been asked to establish a standard for determining whether a redistricting map is an unconstitutional partisan gerrymander under the Equal Protection Clause of the Fourteenth Amendment and the First Amendment. The Court has defined partisan gerrymandering as "the drawing of legislative district lines to subordinate adherents of one political party and entrench a rival party in power."

Although the Supreme Court has invalidated redistricting maps as unconstitutional racial gerrymanders, it has not invalidated a map because of partisan gerrymandering. In prior cases presenting a claim of unconstitutional partisan gerrymandering, the Court has left open the possibility that such claims could be judicially reviewable, but has been unable to determine a manageable standard for adjudicating such claims. For example, in a 2004 decision, Vieth v. Jubelirer , a plurality of four Justices determined that a claim of unconstitutional partisan gerrymandering presented a nonjusticiable political question, while four other Justices concluded that such claims are justiciable, but could not agree upon a standard for courts to use in assessing such claims. The deciding vote in Vieth , Justice Kennedy, concluded that the claims presented in that case were not justiciable because neither comprehensive, neutral principles for drawing electoral boundaries, nor rules limiting judicial intervention, exist. Nonetheless, he "would not foreclose all possibility of judicial relief if some limited and precise rationale were found to correct an established violation of the Constitution in some redistricting cases." Two years later, in League of United Latin American Citizens ("LULAC") v. Perry , the Court was again divided on the question of whether partisan gerrymandering claims are within the scope of judicial review.

Whitford is an appeal from a federal district court panel decision holding, by a 2-to-1 vote, that a Wisconsin state legislative redistricting map is an unconstitutional partisan gerrymander. According to the district court, the Equal Protection Clause of the Fourteenth Amendment and the guarantees of free speech and association under the First Amendment prohibit a redistricting map that is drawn with the purpose, and has the effect, of placing a "severe impediment" on the effectiveness of a citizen's vote that is based on political affiliation and cannot be justified on other, legitimate legislative grounds. Although the redistricting map complied with traditional redistricting principles—which include contiguity and compactness —based on the record in the case, the court held that the map nonetheless had a purpose and effect of entrenching one party in its control of the legislature without justification.

Under the challenged map, the majority noted that a disparity existed between the share of a party's vote and the power that party wielded. For example, in the 2012 election, "the Republican Party received 48.6% of the two-party statewide vote share for Assembly candidates and won 60 of the 99 seats in the Wisconsin Assembly," and in the 2014 election, "the Republican Party received 52% of the two-party statewide vote share and won 63 assembly seats." In assessing the asymmetry among districts, the court utilized a new measure, which had been proposed by the plaintiffs, termed the "efficiency gap" or "EG." As described by its creators, the EG "represents the difference between the parties' respective wasted votes in an election—where a vote is wasted if it is cast (1) for a losing candidate, or (2) for a winning candidate but in excess of what she needed to prevail." In other words, as the court observed, the EG measures two redistricting methods that are designed to diminish the electoral power of the voters of one party: "cracking" and "packing." As used here, packing refers to the concentration of voters of one party into a limited number of districts so that the party wins those districts by large margins, and cracking refers to the division of voters of one party across a large number of districts so that the party is unable to achieve a majority vote in any district. The EG, the court announced, is "a measure of the degree of both cracking and packing of a particular party's voters that exists in a given district plan, based on an observed electoral result." According to the court, the EG does not impermissibly require that each party receive a share of seats in the legislature in proportion to its vote share, but instead measures the degree to which a redistricting plan "deviat[es] from the relationship we would expect to observe between votes and seats."

The dissent, in contrast, criticized the "entrenchment test" that had been adopted by the majority, arguing that it offers no improvement over other tests that the Supreme Court has already rejected. Further, the dissent denounced the EG—or any measure that is a simple comparison of statewide votes to seats won—as the "enshrinement of a phantom constitutional right" that voters for one party are entitled to representation proportional to the number of votes won by each party's candidate in every district throughout the state. Shortly after agreeing to hear this dispute, by a vote of 5 to 4, the Supreme Court issued a stay of the lower court's decision.

In the Supreme Court, the parties have submitted briefs proffering arguments on both procedural grounds and the merits of the case. As a threshold matter, the appellants—members of the Wisconsin Elections Commission—argue that the district court lacked jurisdiction because statewide claims of partisan gerrymandering are nonjusticiable. That is, the Elections Commission maintains that in view of Court precedent holding that challengers to redistricting maps based on racial gerrymandering can dispute the boundaries of only their own districts, not an entire statewide map, challengers in political gerrymandering cases are similarly restricted. The Election Commission further asserts that the appellees have failed to state a claim upon which relief can be granted by not articulating a "limited and precise" legal standard, criticizing the tests proffered as likely to "sow chaos" because they fail to provide legislatures with a clear metric by which redistricting maps would be evaluated in court. Finally, the Election Commission argues that the challenged map should be upheld because it comports with traditional redistricting principles, pointing out that Justice Kennedy stated in Vieth that any standard for adjudicating partisan gerrymandering claims would need to establish that the legislature drew districts "in a way unrelated to any legitimate legislative objective."

In contrast, drawing a distinction between claims of racial and partisan gerrymandering, the appellees—registered voters in Wisconsin—argue that they have standing to challenge the redistricting map. According to the registered voters, racial gerrymandering claims are district-specific because challengers allege that race is the predominant factor in placing a significant number of minority voters within a district, whereas partisan gerrymandering claims involve the "completely different harms" of subjecting voters to vote dilution and viewpoint discrimination. Therefore, these voters argue that they have standing to bring a statewide challenge alleging partisan gerrymandering. Furthermore, they maintain that partisan gerrymandering claims are justiciable under the test articulated by the lower court requiring a finding of discriminatory intent and effect, lacking any legitimate justification by the legislature. Among other arguments, these voters assert that the test is judicially discernible because it is based on the "comprehensive and neutral principle" of partisan symmetry, as determined by measures such as the EG, whereby maps treat parties symmetrically by enabling them to translate their support into legislative representation. In addition, they maintain that the test is judicially manageable because, among other things, it is neutral and limited, with an effect prong that is easily administered. The appellee voters also counter the argument from the Elections Commission that compliance with traditional redistricting principles serves as a safe harbor, arguing that Court precedent belies such a contention.

The Supreme Court's ruling in Gill v. Whitford could have major consequences for pending and future claims of partisan gerrymandering. The Court could rule in a variety of ways. As a threshold matter, the Court could find that the challengers to the redistricting plan lack standing, dismissing the case for procedural reasons. Similarly, invoking other procedural grounds for dismissal, the Court could reject the standards that the lower court applied in this case and hold that claims of unconstitutional partisan gerrymandering present a nonjusticiable political question, thereby foreclosing all such claims in the future. Notably, the issuance of a stay in this case might indicate a greater likelihood that the Court will rule in favor of the Elections Commission because a key factor a court will consider in deciding to issue a stay is whether there is a strong showing of likely success on the merits. On the other end of the spectrum, and perhaps of greatest significance, the Court might agree with the standards that the lower court applied or identify different standards for courts to use in evaluating future claims. Such a change to Court precedent would likely result in additional challenges to congressional and state legislative maps nationwide, and impact how maps are drawn during the next round of redistricting that follows the 2020 census.

Civil Rights and Free Speech: Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission

In a number of highly publicized cases over the past few years, professional vendors have refused to provide their services for same-sex weddings, citing religious objections. In response, states have charged these vendors with violating local anti-discrimination laws, pitting statutory protections against the interests of those who object to same-sex marriage on religious grounds. The Supreme Court has agreed to hear one of these cases next term in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission . A decision from the Court in this case could affect the reach of federal and state public accommodation laws and other anti-discrimination provisions.

Masterpiece Cakeshop implicates two separate clauses of the First Amendment: the Free Speech Clause and the Free Exercise Clause. The Free Speech Clause protects not only "the right to speak freely," but also "the right to refrain from speaking at all." As a result, the government generally may not compel citizens to affirm "a belief with which the speaker disagrees." This principle extends to both "pure speech" and expressive conduct. For example, in Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston (GLIB) , the Supreme Court held that Massachusetts could not enforce its own anti-discrimination law to require a private organization running a St. Patrick's Day parade to allow another group, GLIB, to march in that parade. The Court concluded that this application of the law would have impermissibly required the parade organizers "to alter the expressive content of their parade." Necessary to its decision was the Court's determination that GLIB's speech would have been attributed to the organizers, because a "parade's overall message is distilled from the individual presentations along the way, and each unit's expression is perceived by spectators as part of the whole."

The Supreme Court has recognized that the First Amendment's Free Exercise Clause "protect[s] religious observers against unequal treatment," and "if the object of a law is to infringe upon or restrict practices because of their religious motivation, the law is not neutral, and it is invalid unless it is justified by a compelling interest and is narrowly tailored to advance that interest." The Court, however, has held that "the right of free exercise does not relieve an individual of the obligation to comply with a 'valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).'" If an otherwise valid law only incidentally burdens the free exercise of religion, the "compelling interest" test (i.e., strict scrutiny), does not apply. Instead, a court will ask whether the law is "rationally related to a legitimate state interest."

The dispute in Masterpiece Cakeshop began when Charlie Craig and David Mullins asked Jack Phillips, the owner of Masterpiece Cakeshop, to make a cake for their wedding. Phillips declined without discussing any details of the request, stating that because of his religious beliefs, he does not make cakes for same-sex weddings. Craig and Mullins filed a claim with the Colorado Civil Rights Commission (Commission), asserting that Phillips had violated the Colorado Anti-Discrimination Act by discriminating against the couple on the basis of their sexual orientation. The Commission agreed and ordered the company to "cease and desist from discriminating against ... same-sex couples by refusing to sell them wedding cakes or any product [it] would sell to heterosexual couples." Masterpiece Cakeshop and Phillips appealed this order in state court, but the Colorado Court of Appeals rejected the challenge and upheld the Commission's order. On June 26, 2017, the Supreme Court granted the baker's petition for a writ of certiorari.

Phillips first argues that by forcing him to make a cake for a same-sex wedding, Colorado is compelling him to express a message with which he disagrees—that is, that he celebrates same-sex marriage. Furthermore, Phillips claims that the state is applying its law "in a viewpoint discriminatory manner," compelling speech "only from cake artists who oppose same-sex marriage but not from those who support it." The Commission argues in response that the lower court correctly rejected this position by holding that under these circumstances, making a cake did not entail compelled speech but instead is commercial conduct that can be regulated by the state. In addition, the argument may be made that even if a wedding cake does express a celebratory message, those observing the cake would not attribute that expression to the cake-maker.

To resolve this freedom-of-speech claim, the Court will likely have to decide whether making a cake for a same-sex wedding is sufficiently expressive as to implicate the First Amendment, such that a reasonable observer would understand that the act of providing a cake communicates an approval of same-sex weddings that can be attributed to Phillips. However, even if the Court were to conclude that making a wedding cake is "speech" protected by the First Amendment, it will then have to decide whether the state impermissibly targeted that speech because of its content or viewpoint.

Phillips also claims that Colorado has violated the Free Exercise Clause by discriminatorily applying its public accommodations law in a way that unlawfully burdens his exercise of his religious beliefs. He claims that Colorado singled him out for discriminatory treatment based on his religion when the Commission forced him to make cakes celebrating same-sex marriage, while still allowing other bakers to decline to make cakes that they believed "convey an offensive message." The respondents argue that the state's anti-discrimination statute is a neutral law that applies to protect "everyone in Colorado from discrimination," serving a compelling state interest. Accordingly, the Court faces the question of whether the statute is "neutral" and "generally applicable," and, therefore, likely constitutional, or whether instead the law restricts religious practices "because of their religious motivation," subjecting the law to strict scrutiny. Complicating matters is that, although Phillips claims that the law has been enforced in a discriminatory manner, the Court's decision in Employment Division v. Smith seems to require a court to review the validity of the statute as a whole, rather than the statute's application to a particular person, even when—as in Smith —the case presents an as-applied challenge. But some lower court decisions suggest that state policies of granting exemptions might suffice to subject a law to strict scrutiny, providing some support for Phillips's position.

If the Court were to conclude that Colorado's actions should be subject to strict scrutiny under either of the First Amendment claims, Mullins and Craig have argued in their own brief to the Court that even if the law is subject to heightened scrutiny, "the government interest in combating discrimination is ... compelling, and ... anti-discrimination laws are the least restrictive means of achieving that purpose." If the Court were to agree that the law passes even this heightened review standard, it might not need to reach the prior question of which standard applies. On the other hand, only "rarely are statutes sustained in the face of strict scrutiny," as the Court has described such scrutiny as "strict in theory but usually fatal in fact."

Masterpiece Cakeshop presents the Court with an opportunity to elucidate the content of the First Amendment's protections of speech and religion, and to clarify how those constitutional protections can be balanced against the state's interests in enforcing its anti-discrimination laws. Though it implicates distinct legal issues, this case will necessarily be viewed against the backdrop of cases like Obergefell v. Hodges , which held that the Constitution affords same-sex couples with the fundamental right to marriage, but also recognized that the First Amendment provides some protections to those who "advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned." Court decisions extending constitutional protections to same-sex individuals, along with the decisions of states and municipalities to expand the protections of local laws, increase the likelihood of a collision with the rights of those who wish not to participate in, or associate with, same-sex marriage ceremonies. The Court's decision in Masterpiece Cakeshop could even directly implicate the reach of federal laws, particularly given that some lower courts have interpreted Title VII of the Civil Rights Act of 1964 to provide protection from discrimination based on sexual orientation. Depending on how the Court resolves these competing interests, Congress might be able to subsequently weigh in, either by enacting statutory protections of speech or religious beliefs, or altering the federal statutes preventing discrimination in public accommodations.