Supreme Court October Term 2017: A Preview of Select Cases

Contents

• Fourth Amendment: Carpenter v. United States
• Federalism: Christie v. National Collegiate Athletic Association
• Redistricting: Gill v. Whitford
• Civil Rights and Free Speech: Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission

Summary

On 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. With the Court already accepting over 30 cases for its next term, many of which raise deep and difficult questions in various areas of law, the October 2017 Supreme Court term could be considerably different. The next Court term has the potential to be one of the most consequential in years.

A full discussion of every case that the Court will hear during the October 2017 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 notable cases of the new term that could impact the work of Congress: (1) Carpenter v. United States; (2) Christie v. National Collegiate Athletic Association (NCAA); (3) Gill v. Whitford; and (4) Masterpiece Cakeshop v. Colorado Civil Rights Commission.

In a case that could decide whether cell phone users have a protected privacy interest in the trove of location data held by their wireless carriers, the Court in Carpenter v. United States will examine whether the government's warrantless collection of historical cell phone location data is constrained by the Fourth Amendment of the Constitution. In Christie v. NCAA, the Court will consider whether a federal statute understood to bar the partial repeal of New Jersey's sports gambling prohibition runs afoul of the Tenth Amendment's anti-commandeering principle. In a case that could significantly impact how congressional and state legislative redistricting maps are drawn, Gill v. Whitford will examine whether a state's redistricting map constitutes an unconstitutional partisan gerrymander. Finally, in Masterpiece Cakeshop v. Colorado Civil Rights Commission, the Court will examine a dispute that weighs states' interests in enforcing their civil rights laws against the interests of those who object to same-sex marriage on religious grounds. The discussion that follows of each of these cases (1) provides background information; (2) summarizes the arguments that were or are likely to be presented to the Court; 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.

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Supreme Court October Term 2017: A Preview of Select Cases

On 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,¹ 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.² The Court during the October 2016 term issued seventy written opinions and heard oral arguments in sixty-four cases,³ amounting to the lightest docket for the Court since at least the Civil War era.⁴ Unlike recent terms in which the Supreme Court issued major rulings on often-contentious issues like same-sex marriage,⁵ affirmative action,⁶ and abortion,⁷ 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.⁸

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 review⁹ or broken a tie in a relatively close case.¹⁰ 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.¹¹ 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.¹²

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,¹³ 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.¹⁴ 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;¹⁵
• a follow-up to a closely watched 2013 case¹⁶ exploring whether a foreign corporation can be sued under the Alien Tort Statute;¹⁷
• 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;¹⁸ 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.¹⁹

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 below²⁰ 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,"²¹ which generally requires the government to obtain a warrant before conducting a "search."²² A "search" occurs if a government investigative measure violates a person's reasonable expectation of privacy.²³ 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.²⁴ 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.²⁵ 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.²⁶ 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.²⁷ 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.²⁸

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.²⁹ 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.³⁰ 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 1986.³¹ 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."³² The probable cause needed for a warrant, in contrast, imposes a higher standard on the government.³³ 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.³⁴

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.³⁵ 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.³⁶ 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.³⁷

The Sixth Circuit decision aligns with decisions of other federal appellate courts rejecting Fourth Amendment challenges to the warrantless collection of historical CSLI.³⁸ 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.³⁹ 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.⁴⁰ 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.⁴¹

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.⁴² 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.⁴³ 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.⁴⁴ Jones did not implicate the third-party doctrine because the government tracked the defendant's location directly, through its own GPS device.⁴⁵ 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.⁴⁶

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."⁴⁷ 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),⁴⁸ which largely displaced constitutional case law in setting boundaries on law enforcement use of wiretaps.⁴⁹ 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 1986,⁵⁰ and the relevant provision has not undergone substantive amendment since 1994,⁵¹ before cell sites proliferated on the American landscape.⁵² 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,⁵³ 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.⁵⁴ The Court's resolution of this case could be consequential not only for federal regulation of sports gambling,⁵⁵ 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.⁵⁶

The Supremacy Clause of the Constitution establishes that properly enacted federal laws, treaties, and the Constitution itself are "the supreme Law of the Land."⁵⁷ Accordingly, federal law may displace otherwise valid, but conflicting state actions.⁵⁸ The Court has "long recognized" that federal law can preempt state regulation of a particular activity in whole or in part,⁵⁹ and federal law can also permissibly condition a state's ability to regulate an activity upon conformity with federal standards.⁶⁰

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."⁶¹ The anti-commandeering doctrine, which is derived from the Tenth Amendment's recognition of the states' separate and residual sovereignty,⁶² prohibits Congress from directly compelling the state political branches to perform regulatory functions on the federal government's behalf.⁶³ 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.⁶⁴ 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."⁶⁵ 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.⁶⁶ 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."⁶⁷

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)⁶⁸—a federal statute that, among other things, makes it unlawful for most states to "authorize by law" sports gambling⁶⁹—and a 2014 New Jersey statute that partially repeals the state's prohibition on such activity.⁷⁰ 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 21.⁷¹

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.⁷² Sitting en banc, the U.S. Court of Appeals for the Third Circuit (Third Circuit) upheld the injunction.⁷³ The en banc majority characterized New Jersey's partial repeal of its sports gambling prohibitions as an "artfully couched" authorization,⁷⁴ "selectively dictating where sports gambling may occur, who may place bets in such gambling, and which athletic contests are permissible subjects for such gambling."⁷⁵ The Third Circuit held that the 2014 New Jersey statute functionally "authorize[d] by law" sports gambling in contravention of the federal statute.⁷⁶

The Third Circuit was unpersuaded by New Jersey's argument that PASPA unconstitutionally commandeered the state's legislative process.⁷⁷ The circuit court observed that PASPA did not compel New Jersey to "pass laws ... or in any other way enforce federal laws."⁷⁸ 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.⁷⁹ 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.⁸⁰ 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.⁸¹

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."⁸² The Supreme Court granted certiorari to consider whether PASPA violates the anti-commandeering doctrine.⁸³

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.⁸⁴ 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.⁸⁵ 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.⁸⁶

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,⁸⁷ 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.⁸⁸ 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."⁸⁹ 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.⁹⁰ 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.⁹¹ 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.⁹² 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.⁹³ 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.⁹⁴

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.⁹⁵ 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.⁹⁶ 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."⁹⁷

Although the Supreme Court has invalidated redistricting maps as unconstitutional racial gerrymanders,⁹⁸ 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,⁹⁹ but has been unable to determine a manageable standard for adjudicating such claims. For example, in a 2004 decision, Vieth v. Jubelirer,¹⁰⁰ a plurality of four Justices determined that a claim of unconstitutional partisan gerrymandering presented a nonjusticiable political question,¹⁰¹ 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.¹⁰² 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.¹⁰³ 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."¹⁰⁴ 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.¹⁰⁵

Whitford is an appeal from a federal district court panel¹⁰⁶ decision holding, by a 2-to-1 vote, that a Wisconsin state legislative redistricting map is an unconstitutional partisan gerrymander.¹⁰⁷ 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.¹⁰⁸ Although the redistricting map complied with traditional redistricting principles—which include contiguity and compactness¹⁰⁹—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.¹¹⁰

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,"¹¹¹ and in the 2014 election, "the Republican Party received 52% of the two-party statewide vote share and won 63 assembly seats."¹¹² 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."¹¹³ 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."¹¹⁴ 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."¹¹⁵ 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.¹¹⁶ 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."¹¹⁷ 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."¹¹⁸

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.¹¹⁹ 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.¹²⁰ 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.¹²¹

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.¹²² 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.¹²³ 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.¹²⁴ 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."¹²⁵

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.¹²⁶ 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.¹²⁷ Therefore, these voters argue that they have standing to bring a statewide challenge alleging partisan gerrymandering.¹²⁸ 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.¹²⁹ 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.¹³⁰ 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.¹³¹ 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.¹³²

The Supreme Court's ruling in Gill v. Whitford could have major consequences for pending¹³³ and future claims of partisan gerrymandering.¹³⁴ 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.¹³⁵ 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.¹³⁶ 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.¹³⁷ The Supreme Court has agreed to hear one of these cases next term in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission.¹³⁸ A decision from the Court in this case could affect the reach of federal and state public accommodation laws and other anti-discrimination provisions.¹³⁹

Masterpiece Cakeshop implicates two separate¹⁴⁰ clauses of the First Amendment:¹⁴¹ the Free Speech Clause and the Free Exercise Clause.¹⁴² The Free Speech Clause protects not only "the right to speak freely," but also "the right to refrain from speaking at all."¹⁴³ As a result, the government generally may not compel citizens to affirm "a belief with which the speaker disagrees."¹⁴⁴ This principle extends to both "pure speech"¹⁴⁵ and expressive conduct.¹⁴⁶ 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.¹⁴⁷ The Court concluded that this application of the law would have impermissibly required the parade organizers "to alter the expressive content of their parade."¹⁴⁸ 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."¹⁴⁹

The Supreme Court has recognized that the First Amendment's Free Exercise Clause "protect[s] religious observers against unequal treatment,"¹⁵⁰ 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."¹⁵¹ 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).'"¹⁵² If an otherwise valid law only incidentally burdens the free exercise of religion, the "compelling interest" test (i.e., strict scrutiny), does not apply.¹⁵³ Instead, a court will ask whether the law is "rationally related to a legitimate state interest."¹⁵⁴

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.¹⁵⁵ 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.¹⁵⁶ 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.¹⁵⁷ 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."¹⁵⁸ 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.¹⁵⁹ On June 26, 2017, the Supreme Court granted the baker's petition for a writ of certiorari.¹⁶⁰

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.¹⁶¹ 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."¹⁶² 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.¹⁶³ 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.¹⁶⁴

To resolve this freedom-of-speech claim, the Court will likely have to decide whether making a cake for a same-sex wedding¹⁶⁵ 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.¹⁶⁶ 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.¹⁶⁷ 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."¹⁶⁸ The respondents argue that the state's anti-discrimination statute is a neutral law that applies to protect "everyone in Colorado from discrimination,"¹⁶⁹ serving a compelling state interest.¹⁷⁰ Accordingly, the Court faces the question of whether the statute is "neutral" and "generally applicable,"¹⁷¹ and, therefore, likely constitutional, or whether instead the law restricts religious practices "because of their religious motivation,"¹⁷² 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.¹⁷³ 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.¹⁷⁴

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."¹⁷⁵ 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."¹⁷⁶

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,¹⁷⁷ 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."¹⁷⁸ 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 1964¹⁷⁹ to provide protection from discrimination based on sexual orientation.¹⁸⁰ 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.

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Footnotes

1.	See CRS Report R44949, Supreme Court October Term 2016: A Review of Select Major Rulings, coordinated by [author name scrubbed] (providing an overview of the major cases decided during the October 2016 Supreme Court term).
2.	See, e.g., Richard Wolf, For Supreme Court, the Term That Just Ended Was the Calm Before the Storm, USA Today (June 28, 2017), https://www.usatoday.com/story/news/politics/2017/06/28/supreme-court-term-just-ended-calm-before-storm/103229942/ (describing the October 2016 term as a "sleepy term of cases and controversies"); Todd Ruger, Next Supreme Court Term Stacked With Major Cases, Roll Call (June 27, 2017), https://www.rollcall.com/news/politics/next-supreme-court-term-stacked-major-cases ("The Supreme Court ended its current term this week without deciding the kinds of blockbuster issues that usually draw demonstrators to its plaza at the end of June.... "); Jonathan H. Adler, The Supreme Court's 2016-2017 Term—"The Calm Before the Storm," Wash. Post (June 27, 2017), https://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/06/27/the-supreme-courts-2016-2017-term-the-calm-before-the-storm/?utm_term=.7afcbd441b4e.
3.	See SCOTUSblog, Stat Pack: October 2016 Term 1 (June 28, 2017), http://www.scotusblog.com/wp-content/uploads/2017/06/SB_Stat_Pack_2017.06.28.pdf.
4.	Washington University in St. Louis School of Law's Supreme Court Database indicates that the last term in which the Court issued fewer than 70 opinions was 1864, when the Court issued 59 opinions. See The Supreme Court Database, Washington University Law, http://scdb.wustl.edu/data.php?s=6 (last accessed September 15, 2017).
5.	See Obergefell v. Hodges, 135 S. Ct. 2584, 2608 (2015). For more on this decision, see CRS Report R44143, Obergefell v. Hodges: Same-Sex Marriage Legalized. The Court during the October 2016 term did issue an opinion holding that Obergefell required the invalidation of an Arkansas law providing that when a married woman gives birth, her husband must be listed as the second parent on the child's birth certificate, including when he is not the child's genetic parent. See Pavan v. Smith, 137 S. Ct. 2075, 2079 (2017) (per curiam). Pavan, however, was a five-page, unsigned opinion issued without oral argument.
6.	See Fisher v. Univ. of Tex. at Austin, 136 S. Ct. 2198, 2214-15 (2016). For more on this decision, see CRS Legal Sidebar WSLG1609, Supreme Court Upholds University of Texas's Affirmative Action Plan.
7.	See Whole Woman's Health v. Hellerstedt, 136 S. Ct. 2292, 2320 (2016). For more on this decision, see CRS Legal Sidebar WSLG1610, Supreme Court Strikes Down Texas Abortion Requirements, by [author name scrubbed].
8.	See, e.g., Geoffrey Lou Guray, The Supreme Court Just Had a Quiet Term. These High-Profile Cases are About to Change That., PBS (July 3, 2017), http://www.pbs.org/newshour/updates/supreme-court-just-quiet-term-high-profile-cases-change/ ("Nearly every single Supreme Court term in recent memory has had at least one-headline grabbing decision. That changed in the court's latest term, when it kept high-profile legal disputes off the docket."); Joseph P. Williams, The Supreme Court Term: No Big Blockbusters, but Plenty of Work, U.S. News & World Report (June 19, 2017), https://www.usnews.com/news/national-news/articles/2017-06-19/what-did-the-supreme-court-do-in-2016-2017 ("The justices didn't hand down any blockbuster rulings that reshaped the social or political landscape.").
9.	Under the "rule of four," the vote of four Justices for the Supreme Court is generally required to hear a case. See Bailey v. Central Vt. Ry., 319 U.S. 350, 358-59 (1943) (Stone, C.J., concurring) (noting that the Court has adhered to the "long standing practice of granting certiorari upon the affirmative vote of four Justices"); Harris v. Pennsylvania R.R. Co., 361 U.S. 15, 18 (1959) (Douglas, J., concurring) ("[T]he practice of the Court in allowing four out of nine votes to control the certiorari docket is well established and of long duration."). The Court opted not to grant review in several closely watched cases during the October 2016 term. See, e.g., Arthur v. Dunn, 137 S. Ct. 725, 734 (2017) (Sotomayor, J., dissenting from the denial of certiorari) (arguing that the Court should have granted certiorari in challenge that the State of Alabama's method of execution was cruel and unusual under the Eighth Amendment); Abbott v. Veasey, 137 S. Ct. 612, 613 (2017) (Roberts, C.J., statement respecting denial of certiorari) (noting that a case challenging Texas's voter identification law would be "better suited for certiorari review" at a later time); see generally Robert Barnes, Supreme Court Declines to Hear Immigration and Redskins Cases, Wash. Post (October 3, 2016) https://www.washingtonpost.com/politics/courts_law/supreme-court-declines-to-hear-immigration-and-redskins-cases/2016/10/03/142eeb60-8973-11e6-b24f-a7f89eb68887_story.html?utm_term=.3f2ba52986f9 (noting that the Court declined to hear appeals respecting a number of issues, including on immigration and campaign finance law).
10.	In two highly anticipated immigration cases, the eight-Member court was apparently deadlocked, as the cases were rescheduled for argument for the October 2017 term. In Jennings v. Rodriguez, No. 15-1204, restored to calendar for re-argument, June 26, 2017, the Court is asked to review immigration authorities' practice of detaining certain categories of aliens while seeking orders of removal against them. In Sessions v. Dimaya, No. 15-1498, restored to calendar for re-argument, June 26, 2017, the Court will consider whether 18 U.S.C. § 16(b), as incorporated into provisions of the Immigration and Nationality Act (INA) concerning alien eligibility for removal from the United States, is unconstitutionally vague.
11.	See Pat Schneider, Justice Elena Kagan said short-handed court talked more to reach consensus, Cap Times (September 9, 2017), http://host.madison.com/ct/news/local/education/university/justice-elena-kagan-said-short-handed-court-talked-more-to/article_e705fc71-2223-5125-a814-8d192c80d057.html (quoting Justice Elena Kagan as saying that "if members decided issues too quickly along broad ideological lines, there would be a lot of split 4-4 decisions that would leave lower court rulings intact" and, as a result, "[t]he only way to get un-split was to keep talking and find a way to reframe the question and find common ground."); Jess Bravin, With Court at Full Strength, Alito Foresees Less Conservative Compromise With Liberal Bloc, Wall Street J. (April 21, 2017), https://blogs.wsj.com/washwire/2017/04/21/with-court-at-full-strength-alito-foresees-more-aggressive-conservative-majority/ (quoting Justice Samuel Alito that "[h]aving eight [Justices] ... probably required having a lot more discussion of some things and more compromise and maybe narrower opinions in some cases than we would have issued otherwise, but as of this Monday we were back to an odd number").
12.	See SCOTUSblog, Stat Pack: October 2016 Term 16 (June 28, 2017), http://www.scotusblog.com/wp-content/uploads/2017/06/SB_Stat_Pack_2017.06.28.pdf. This feat has been surpassed only one other time during the Roberts Court era—the October 2013 term (when the Court unanimously agreed on a final judgment in 66% of cases). Id.
13.	For a description of the cases the Court has already accepted for this term, see Table 1. This table is current as of the date of this report, which predates the Court's "long conference" on September 25, 2017, in which the Court traditionally adds several more cases to its docket.
14.	See Hon. Ruth Bader Ginsburg, Supreme Court Justice Ruth Bader Ginsburg Discusses the 2015-16 Term, Duke Law (Aug. 4, 2016), https://law.duke.edu/video/supreme-court-justice-ruth-bader-ginsburg-discusses-2015-16-term/ ("We can safely predict that next term will be a momentous one."); John M. Greabe, SCOTUS's 2016-17 Term: The Calm Before the Storm?, Concord Monitor (July 2, 2017) at D1, D4 ("All of these cases could yield blockbuster rulings by a deeply divided court.").
15.	See Husted v. Randolph Inst., 137 S. Ct. 2188 (2017).
16.	See Kiobel v. Royal Dutch Petro. Co., 569 U.S. 108 (2013).
17.	See Jesner v. Arab Bank, PLC, 137 S. Ct. 1432 (2017).
18.	See Trump v. Int'l Refugee Assistance Project, 137 S. Ct. 2080 (2017).
19.	See Epic Sys. Corp. v. Lewis, 137 S. Ct. 809 (2017).
20.	These cases will be the subject of a seminar at CRS's Continuing Legal Education series, the Federal Law Update. For more information, see CRS, Federal Law Update: Fall 2017, http://www.crs.gov/Events/Details/16684c3b-cd8c-e711-80fb-005056ab2cfe.
21.	U.S. Const. amend. IV.
22.	Birchfield v. North Dakota, 136 S. Ct. 2160, 2173 (2016).
23.	See United States v. Jones, 565 U.S. 400, 406 (2012).
24.	389 U.S. 347, 359 (1967); id. at 360-61 (Harlan, J., concurring).
25.	Smith v. Maryland, 442 U.S. 735, 743-44 (1979).
26.	United States v. Miller, 425 U.S. 435, 442-43 (1976).
27.	Smith, 442 U.S. at 744-45.
28.	Id. at 744.
29.	United States v. Carpenter, 819 F.3d 880, 885 (6th Cir. 2016).
30.	Id.
31.	18 U.S.C. § 2703(d) (2009); Carpenter, 819 F.3d at 884.
32.	18 U.S.C. § 2703(d).
33.	See Illinois v. Gates, 462 U.S. 213, 238 (1983) (probable cause requires "a fair probability that contraband or evidence of a crime will be found in a particular place").
34.	Carpenter, 819 F.3d at 884.
35.	Id. at 887-88.
36.	Id.
37.	Id. at 888 ("[A]ny cellphone user who has seen her phone's signal strength fluctuate must know that, when she places or receives a call, her phone 'exposes' its location to the nearest cell tower and thus to the company that operates the tower.").
38.	United States v. Graham, 824 F.3d 421, 424-25 (4th Cir. 2016) (en banc); United States v. Davis, 785 F.3d 498, 499 (11th Cir. 2015); In re Application of U.S. for Historical Cell Site Data, 724 F.3d 600, 602 (5th Cir. 2013); see also United States v. Stimler, 864 F.3d 253, 263, 266-67 (3d Cir. 2017) (holding that third-party doctrine does not apply to the transmission of CSLI, which is not "truly voluntary," but that individuals nonetheless lack a reasonable expectation of privacy in CSLI due to the data's "inexact nature"). All of these cases, like Carpenter, concern the collection of historical CSLI. Different issues arise when the government requests so-called "prospective" CSLI to track a suspect in real time. See United States v. Wallace,—F.3d—, 2017 WL 3304087, at *1, (5th Cir. 2017) ("Whether obtaining [prospective CSLI] constitutes a search within the meaning of the Fourth Amendment is still an open question in this Circuit.").
39.	Davis, 785 F.3d at 525 (Rosenbaum, J., concurring) ("In our time, unless a person is willing to live 'off the grid,' it is nearly impossible to avoid disclosing the most personal of information to third-party service providers.... Since we are not the Supreme Court and the third-party doctrine continues to exist and to be good law at this time, though, we must apply the third-party doctrine where appropriate."); Graham, 824 F.3d at 436 ("We recognize the appeal—if we were writing on a clean slate—in holding that individuals always have a reasonable expectation of privacy in large quantities of location information, even if they have shared that information with a phone company.") (emphasis in original).
40.	Carpenter, 819 F.3d at 894 (Stranch, J., concurring).
41.	Id. ("I would hold that the district court's denial of Carpenter and Sanders's motion to suppress was nevertheless proper because some extension of the good-faith exception to the exclusionary rule would be appropriate.").
42.	565 U.S. 400, 405-07 (2012).
43.	Id.
44.	Id. at 415 (Sotomayor, J., concurring) ("I agree with Justice Alito that, at the very least, 'longer term GPS monitoring in investigations of most offenses impinges on expectations of privacy.'") (quoting id. at 430 (Alito, J., concurring)). Justice Sotomayor found it unnecessary to actually reach the Katz analysis because she concurred in the majority's resolution of the case on the physical trespass theory. Id. at 414.
45.	Id. at 403.
46.	Id. at 430 (Alito, J., concurring) ("[S]ociety's expectation has been that law enforcement agents and others would not—and indeed, in the main, simply could not—secretly monitor and catalogue every single movement of an individual's car for a very long period."); id. at 416 (Sotomayor, J., concurring) ("I would ask whether people reasonably expect that their movements will be recorded and aggregated in a manner that enables the Government to ascertain, more or less at will, their political and religious beliefs, sexual habits, and so on.").
47.	Id. at 427 (Alito, J., concurring); see also Riley v. California, 134 S. Ct. 2473, 2497 (2014) (Alito, J., concurring) ("[I]t would be very unfortunate if privacy protection in the 21st century were left primarily to the federal courts using the blunt instrument of the Fourth Amendment.").
48.	18 U.S.C. §§ 2510-2522 (2006).
49.	Jones, 565 U.S. at 427 (Alito, J., concurring).
50.	Electronic Communications Privacy Act of 1986, P.L. 99-508, 100 Stat. 1848 (1986).
51.	See Communications Assistance for Law Enforcement Act, P.L. 103-414, 108 Stat. 4279 (1994).
52.	See Carpenter, 819 F.3d at 885 (describing Federal Bureau of Investigation evidence that cell sites are now typically spaced less than two miles apart in urban areas). The GPS Act, introduced in House and Senate versions on February 15, 2017, would require law enforcement to obtain a warrant for "geolocation information"—a term that, as defined in the bills, would appear to cover CSLI. H.R. 1062, 115th Cong. (2017); S. 395, 115th Cong. (2017).
53.	No. 16-476, 137 S. Ct. 2327 (June 27, 2017) consolidated with N.J. Thoroughbred Horsemen's Ass'n, Inc. v. Nat'l Collegiate Athletic Ass'n, 137 S. Ct. 2326 (June 27, 2017).
54.	See Questions Presented, Christie v. Nat'l Collegiate Athletic Ass'n, No. 16-476, https://www.supremecourt.gov/docket/docketfiles/html/qp/16-00476qp.pdf ("Does a federal statute that prohibits modification or repeal of state-law prohibitions on private conduct impermissibly commandeer the regulatory power of States in contravention of New York v. United States, 505 U.S. 144 (1992)?").
55.	Gambling regulation has primarily been a matter of state law, with federal statutes filling certain gaps in limited areas, such as internet gambling and the interstate transmission of bets and gambling-related information. 18 U.S.C. § 1084; 31 U.S.C. §§ 5361-5367.
56.	See Elbert Lin and Thomas M. Johnson Jr., Symposium: High Stakes for Federalism in Heavyweight Clash Over the Anti-commandeering Doctrine, SCOTUSblog.com (Aug. 17, 2017) (describing Christie as having "the markings of a sleeper blockbuster" because of its possible effect on the scope and viability of the anti-commandeering doctrine).
57.	U.S. Const., art. VI, cl. 2.
58.	See Hodel v. Virginia Surface Min. and Reclamation Ass'n, Inc., 452 U.S. 264, 291 (1981) ("The Court long ago rejected the suggestion that Congress invades areas reserved to the States by the Tenth Amendment simply because it exercises its authority under the Commerce Clause in a manner that displaces the States' exercise of their police powers.").
59.	See Altria Grp., Inc. v. Good, 555 U.S. 70, 76, 129 S. Ct. 538, 543 (2008) ("Consistent with [the Supremacy Clause's] command, we have long recognized that state laws that conflict with federal law are without effect.") (internal citations and quotations omitted).
60.	New York v. United States, 505 U.S. 144,173-74 (1992) ("[W]e have recognized the ability of Congress to offer States the choice of regulating that activity according to federal standards or having state law pre-empted by federal regulation."). See generally Hodel, 452 U.S. 264; Fed. Energy Regulatory Comm'n v. Mississippi, 456 U.S. 742 (1982).
61.	Gregory v. Ashcroft, 501 U.S. 452, 461 (1991).
62.	See Printz v. United States, 521 U.S. 898, 919 (1997).
63.	See New York, 505 at 155-60 (discussing division of sovereignty in the federalist system, and stating that although "[t]he actual scope of the Federal Government's authority with respect to the States has changed over the years," "the constitutional structure underlying and limiting that authority has not"); see also Printz, 521 U.S. at 918-19. ("It is incontestible that the Constitution established a system of 'dual sovereignty.' ... Although the States surrendered many of their powers to the [] Federal Government, they retained 'a residuary and inviolable sovereignty' ... rendered express by the Tenth Amendment's assertion that '[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.'") (internal citations omitted).
64.	New York, 505 U.S. at 188.
65.	Id. at 166. The Court has also recognized that Congress may permissibly subject states to the same legal requirements as private parties, or regulate state activities that do not implicate state regulation of private conduct, without violating the Tenth Amendment. See Reno v. Condon, 528 U.S. 141 (2000) (upholding federal law preventing states from disclosing or sharing a driver's personal information without the driver's consent); South Carolina v. Baker, 485 U.S. 505 (1988) (upholding federal prohibition upon states' issuance of unregistered bonds in the face of a Tenth Amendment challenge); Garcia v. San Antonio San Antonio Metro. Transit Auth., 469 U.S. 528 (1985) (extension of overtime and minimum wage requirements of the Fair Labor Standards Act to public transit company authority did not violate the Tenth Amendment).
66.	New York, 505 U.S. at 161.
67.	Printz, 521 U.S. at 935.
68.	P.L. 102-559, 106 Stat. 422, codified at 28 U.S.C. §§ 3701-3704.
69.	28 U.S.C. § 3702(1). PASPA included an exemption for states which already permitted sports gambling at the time of the federal law's enactment, as well as a one-year window from PASPA's enactment when other states could permissibly enact laws authorizing casino-based sports gambling. Id. § 3704. New Jersey, however, maintained its existing sports gambling restrictions beyond the one-year exemption period and therefore could not rely on the exemption.
70.	N.J. Stat. Ann. §§ 5:12A–7 to –9 (2014).
71.	N.J. Stat. Ann. §§ 5:12A–7 to –9 (2014). The 2014 law was not the first attempt by New Jersey to modify its sports-gambling laws. In 2011, New Jersey voters amended the state's constitution to make it lawful for the state legislature to allow sports gambling. N.J. Const. art. IV, § 7, ¶ 2(D).The following year, the state legislature enacted the Sports Wagering Act, establishing a detailed state regulatory scheme to license gambling operators and their employees. N.J. Stat. Ann. §§ 5:12A–1, et seq. (2012). Five sports leagues sued to enjoin the 2012 law as preempted by PASPA, and the Third Circuit affirmed an injunction against the state regulatory scheme. Nat'l Collegiate Athletic Ass'n v.Gov. of N.J. [hereinafter "Christie I"], 730 F.3d 218, 233 (3d Cir. 2013), cert. denied, 134 S. Ct. 2866 (2014). In doing so, the court rejected New Jersey's argument that PASPA violates the anti-commandeering doctrine. Id. at 233. The court drew a distinction between the repeal of a sports-gambling ban, which it explained was permissible under PASPA, and the affirmative authorization of sports gambling effectuated by the Sports Wagering Act's licensing scheme, which the court concluded was not. Id. at 232-33. When the Third Circuit subsequently held that New Jersey's partial repeal of its sports gambling restrictions similarly was barred by PASPA, the court stated that "[t]o the extent that in Christie I we took the position that a repeal cannot constitute an authorization, we now reject that reasoning." Nat'l Collegiate Athletic Ass'n v. Gov. of N.J. [hereinafter "Christie II"], 832 F.3d 389, 396-97 (3d Cir. 2016).
72.	Nat'l Collegiate Athletic Ass'n v. Christie, 61 F. Supp. 3d 488, 491 (D.N.J. 2014), aff'd sub nom. Nat'l Collegiate Athletic Ass'n v. Gov. of New Jersey, 799 F.3d 259 (3d Cir. 2015), reh'g en banc granted, opinion vacated (October 14, 2015), on reh'g en banc, 832 F.3d 389 (3d Cir. 2016), and aff'd sub nom. Christie II, 832 F.3d 389 (3d Cir. 2016).
73.	Christie II, 832 F.3d at 402.
74.	Id. at 397.
75.	Id. Judge Fuentes, joined by Judge Restrepo, dissented from the en banc majority and argued that PASPA's prohibition on governmental authorization of sports gambling was not meant to apply to a whole or partial repeal of an existing prohibition. Id. at 403 (Fuentes, J. dissenting) ("I believe that Congress gave this restriction a special meaning—that a state's 'authoriz[ation] by law' of sports betting cannot merely be inferred, but rather requires a specific legislative enactment that affirmatively allows the people of the state to bet on sports. Any other interpretation would be reading the phrase 'by law' out of the statute."). Judge Vanaskie dissented from the en banc majority and argued that PASPA unconstitutionally commandeered New Jersey's legislative process. Under the majority's reasoning, Judge Vanaskie argued, PASPA "prevents States from passing any laws to repeal existing gambling laws." Id. at 410 (Vanaskie, J., dissenting). Accordingly, PASPA "directs States to maintain gambling laws by dictating the manner in which States must enforce a federal law" in violation of the anti-commandeering doctrine. Id. at 411.
76.	Id. at 401-02.
77.	Id. at 398-402.
78.	Id. at 402 (quoting Christie I, 730 F.3d 218, 231 (3d Cir. 2013)).
79.	Id.
80.	Id. at 401-02 ("[N]ot all partial repeals are created equal.... We need not, however, articulate a line whereby a partial repeal of a sports wagering ban amounts to an authorization under PASPA, if indeed such a line could be drawn. It is sufficient to conclude that the 2014 Law overstepped it.").
81.	Id. at 402.
82.	Petition for a Writ of Certiorari, Christie v. NCAA, No. 16-476, 2016 WL 5940876, at *25 (U.S. October 7, 2016) (quoting Conant v. Walters, 309 F.3d 629, 646 (9th Cir. 2002) (Kozinski, J., concurring)).
83.	137 S. Ct. 2327 (U.S. June 27, 2017). The Court granted certiorari to consider whether PASPA violated the anti-commandeering doctrine. See Questions Presented, supra note 54. Other issues may also be implicated by the litigation, including PASPA's appropriate construction and constitutional issues relating to notions of equal sovereignty. See, e.g., Marty Lederman, If federal law prohibits the sports gambling, which way does that cut in Christie v. NCAA?, Balkinization (Aug. 15, 2017), https://balkin.blogspot.com/2017/08/if-federal-law-prohibits-sports.html (discussing arguments raised in by parties during Supreme Court briefing as to whether PASPA should be construed to separately prohibit sports gambling by private parties, along with the implications such construction would have for anti-commandeering arguments made against PASPA); Ryan M. Rodenberg & John T. Holden, Sports Betting Has an Equal Sovereignty Problem, 67 Duke L.J. Online 1 (2017) (arguing generally that PASPA raises concerns under the equal sovereignty doctrine by exempting some states' sports gambling laws from the preemptive effect of the statute, and criticizing contrary conclusions reached by the lower courts in Christie litigation).
84.	Hodel v. Virginia Surface Min. and Reclamation Ass'n, Inc., 452 U.S. 264, 290 (1981) ("A wealth of precedent attests to congressional authority to displace or preempt state laws regulating private activity affecting interstate commerce when these laws conflict with federal law.").
85.	Compare Rodenberg & Holden, supra note 83, at 4 (2017) (quoting some observers and litigants representing New Jersey as characterizing PASPA as "unusual," "peculiar and vague," and "facially unprecedented"), with Brief for the United States as Amicus Curiae in Opposition to Certiorari, Christie v. NCAA, No. 16-476, 2017 WL 2275823, at *10 (U.S. May 23, 2017) (characterizing PASPA as a "commonplace" prohibition on a state policy that "conflict[s] with federal policy in an area within Congress's enumerated powers").
86.	See 15 U.S.C. § 391; Brief for the United States as Amicus Curiae in Opposition to Certiorari, supra note 85, at *19.
87.	Brief for Petitioners, Christie v. NCAA, No. 16-476, 2017 WL 3774486, *53 (U.S. Aug. 29, 2017).
88.	28 U.S.C. § 3702(2).
89.	Id.
90.	See Supplemental Brief for Petitioners in Support of Certiorari, Christie v. NCAA, No. 16-476, 2017 WL 2459690, at *10 (U.S. June 6, 2017); Brief for the United States as Amicus Curiae in Opposition to Certiorari, supra note 85, at *10; Brief for Respondents in Opposition to Certiorari, Christie v. NCAA, No. 16-476, 2016 WL 7321803, at *34 (U.S. December 14, 2016).
91.	Christie II, 832 F.3d at 402.
92.	Id. ("We need not, however, articulate a line whereby a partial repeal of a sports wagering ban amounts to an authorization under PASPA, if indeed such a line could be drawn.").
93.	See Brief for Petitioners, Christie v. NCAA, No. 16-476, 2017 WL 3774486, *21-22 (U.S. August 29, 2017) (disputing the Third Circuit's contention that "not all partial repeals are created equal," Christie II, 832 F.3d at 402, as an "elusive and essentially meaningless aphorism," and declaring that "[o]ur Constitution does not leave the 'division of authority between the Federal Government and the States' to such indeterminate vagaries") (quoting New York v. United States, 505 U.S. 144, 149 (1992)).
94.	Petition for a Writ of Certiorari, supra note 82, at *3.
95.	See Supreme Court of the United States, Argument Calendars, https://www.supremecourt.gov/oral_arguments/calendars/MonthlyArgumentCalOctober2017.html (last visited August 31, 2017).
96.	137 S. Ct. 2268 (U.S. June 19, 2017) (No. 16-1161).
97.	Ariz. State Legislature v. Ariz. Indep. Redistricting Comm'n, 135 S. Ct. 2652, 2658 (2015).
98.	In a 1993 ruling, Shaw v. Reno, the Supreme Court first recognized a claim of racial gerrymandering, holding that the challengers to a redistricting plan had stated a claim under the Fourteenth Amendment's Equal Protection Clause. See 509 U.S. 630, 639-52 (1993). See also Cooper v. Harris, 137 S. Ct. 1455, 1472, 1481-82 (2017) (affirming a three-judge district court ruling that two North Carolina congressional districts were unconstitutional racial gerrymanders in violation of the Fourteenth Amendment's Equal Protection Clause); Miller v. Johnson, 515 U.S. 900, 911 (1995) (holding that a redistricting map was unexplainable on grounds other than race and, therefore, could not be upheld unless narrowly tailored to achieve a compelling state interest). See generally CRS Report R44798, Congressional Redistricting Law: Background and Recent Court Rulings, by [author name scrubbed].
99.	In a 1986 case, Davis v. Bandemer, the Supreme Court first established that a claim of unconstitutional political gerrymandering is justiciable under the Fourteenth Amendment's Equal Protection Clause, creating a scheme whereby claims could succeed only where challengers showed both intentional discrimination against an identifiable political group and a discriminatory effect on that group. As has been observed, the criteria proved difficult to meet. See, e.g., Samuel Issacharoff, Gerrymandering and Political Cartels, 116 Harv. L. Rev. 593, 598 (2002) (characterizing the criteria as resulting in a "new equal protection doctrine with an impossibly high burden of proof for actually making out a claim").
100.	541 U.S. 267 (2004) (plurality opinion).
101.	See id. at 281 (Scalia, J., joined by Rehnquist, C.J., & O'Connor & Thomas, JJ.).
102.	See id. at 317-41 (Stevens, J., dissenting); id. at 343-55 (Souter, J., dissenting, joined by Ginsburg, J.); id. at 355-68 (Breyer, J., dissenting).
103.	See id. at 306-07 (Kennedy, J., concurring). ("With uncertain limits, intervening courts—even when proceeding with best intentions—would risk assuming political, not legal, responsibility for a process that often produces ill will and distrust.")
104.	Id. at 306 (Kennedy, J., concurring).
105.	548 U.S. 399, 408 (2006). In this ruling, the nine Justices of the Supreme Court filed six different opinions, each with subparts.
106.	A provision of federal law provides that cases challenging the constitutionality of redistricting maps be considered by a three-judge federal district court panel with direct appeal to the Supreme Court. 28 U.S.C. §§ 2284, 1253.
107.	Whitford v. Gill, 218 F. Supp. 3d 837 (W.D. Wis. 2016). After holding that the Wisconsin state legislative plan constituted an unconstitutional partisan gerrymander, the court deferred ruling on an appropriate remedy. See id. at 930. In January 2017, the court enjoined the State of Wisconsin from using the plan in all future elections and ordered the state to enact a new plan by November 1, 2017, for use in the November 2018 election. See Whitford v. Gill, Case No. 15-cv-421, 2017 U.S. Dist. LEXIS 11380 at *8 (W.D. Wis. January 27, 2017).
108.	Whitford, 218 F. Supp. 3d at 884.
109.	See e.g., Vieth, 541 U.S. at 348 (listing traditional redistricting criteria to include contiguity, compactness, respect for political subdivisions, and conformity with geographic features like rivers and mountains).
110.	See Whitford, 218 F. Supp. 3d at 883, 898, 910.
111.	Id. at 853.
112.	Id.
113.	Id. at 903.
114.	Nicholas O. Stephanopoulos & Eric M. McGhee, Partisan Gerrymandering and the Efficiency Gap, 82 U. Chi. L. Rev. 831, 834 (2015).
115.	Whitford, 218 F. Supp. at 903.
116.	See id.
117.	Id.
118.	Id. at 907.
119.	Id. at 965 (Griesbach, J., dissenting).
120.	Id. at 934 (Griesbach, J., dissenting).
121.	See Gill v. Whitford, 137 S. Ct. 2289 (2017). Perhaps of note, Justice Kennedy, who was the deciding vote in Vieth, voted with the majority of the Court to issue the stay.
122.	See Brief for Appellants at I, Gill v. Whitford, No. 16-116, 2017 WL 3485551 (U.S. July 28 2017).
123.	See Brief for Appellants, supra note 122, at 28 (citing Ala. Legislative Black Caucus v. Alabama, 135 S. Ct. 1257, 1265 (2015)). For more on this decision, see CRS Legal Sidebar WSLG1230, Supreme Court Rules: Incorrect Standards Used in Upholding Alabama Redistricting Map Against Claim of Unconstitutional Racial Gerrymandering, by [author name scrubbed].
124.	Brief for Appellants, supra note 122, at 46.
125.	Brief for Appellants, supra note 122, at 59-60 (quoting Vieth, 541 U.S. at 306-07 (Kennedy, J., concurring) (emphasis added)).
126.	See Brief for Appellees at I, Gill v. Whitford, No. 16-116, 2017 WL 3726003 (U.S. July 28 2017).
127.	Brief for Appellees, supra note 126, at 30 (citing Shaw, 509 U.S. at 649-50 ("Classifying citizens by race ... threatens ... harms that are not present in our vote-dilution cases.")).
128.	See Brief for Appellees, supra note 126, at I.
129.	See Brief for Appellees, supra note 126, at II.
130.	See Brief for Appellees, supra note 126, at 37.
131.	See Brief for Appellees, supra note 126, at 44.
132.	See Brief for Appellees, supra note 126, at III.
133.	Partisan gerrymandering challenges to redistricting maps in other states are currently pending. See, e.g., Benisek v. Lamone, Case No. JKB-13-3233, 2017 U.S. Dist. LEXIS 136208, at *3 (D.Md. 2017) (denying plaintiff's motion for a preliminary injunction of Maryland's 2011 congressional redistricting map and ordering a stay pending the outcome of the Supreme Court's ruling in Gill v. Whitford); Common Cause v. Rucho, Case No. 1:16-CV-1026, 2017 U.S. Dist. LEXIS 30242, at *5 (M.D.N.C. 2017) (denying defendants' motion to dismiss in a partisan gerrymandering challenge to North Carolina's 2016 congressional redistricting map).
134.	See, e.g., Emily Bazelon, The New Front in the Gerrymandering Wars: Democracy vs. Math, N.Y. Times Mag. (August 29, 2017), https://www.nytimes.com/2017/08/29/magazine/the-new-front-in-the-gerrymandering-wars-democracy-vs-math.html ("The outcome of the Supreme Court's decision in Gill v. Whitford is likely to shape American politics for years and perhaps decades to come."); Elizabeth Slattery, Overview of the Supreme Court's 2017–2018 Term, Heritage Found. Legal Memorandum No. 214 (September 5, 2017), http://www.heritage.org/courts/report/overview-the-supreme-courts-2017-2018-term ("Following the 2020 Census, states across the country will be drawing new district lines, so this case could have huge implications in elections for years to come.").
135.	See, e.g., Nken v. Holder, 556 U.S. 418, 426 (2009) (noting that under the traditional standard for determining whether to issue a stay, a court will consider four factors: "(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies." (quoting Hilton v. Braunskill, 481 U.S. 770, 776 (1987)).
136.	E.g., Brief for The Becket Fund for Religious Liberty as Amicus Curiae Supporting Petitioners, Arlene's Flowers, Inc. v. Washington, No. 17-108, 2017 WL 3588210, at *2 (U.S. August 18, 2017) ("There is currently a wave of religious wedding vendor litigation around the country."); id. at *6-7 (describing "important recurring fact patterns").
137.	See, e.g., State v. Arlene's Flowers, Inc., 389 P.3d 543, 548 (Wash. 2017), petition for cert. filed, No. 17-108 (U.S. 2017); Elane Photography, LLC v. Willock, 309 P.3d 53, 59 (N.M. 2013), cert. denied, 134 S. Ct. 1787, 1787 (2014).
138.	Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Comm'n, 137 S. Ct. 2290, 2290 (2017).
139.	See CRS Report RL33386, Federal Civil Rights Statutes: A Primer.
140.	In his brief on the merits, petitioner has also argued that he presents a "hybrid" claim that implicates both clauses. In Employment Division v. Smith, 494 U.S. 872, 881-82 (1990), the Supreme Court suggested that if a case involves a free exercise claim "in conjunction with other constitutional protections, such as freedom of speech," it might be subject to a heightened review standard. Petitioner claims that his free-exercise challenge, when viewed in conjunction with his "colorable" free speech challenge, should subject the state law to strict scrutiny. Brief for Petitioners at 46-47, Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Comm'n, 137 S. Ct. 2290, No. 16-111, 2017 WL 3913762, at *46-47 (U.S. August 31, 2017). This case could therefore offer the Court an opportunity to recognize and clarify this "hybrid claim" exception suggested by Smith, 494 U.S. at 881-82.
141.	U.S. Const. amend. I ("Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.").
142.	Petition for a Writ of Certiorari at 2, Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Comm'n, 137 S. Ct. 2290, No. 16-111, 2016 WL 3971309 (U.S. July 22, 2016).
143.	Wooley v. Maynard, 430 U.S. 705, 715 (1977) ("The First Amendment protects the right of individuals to hold a point of view different from the majority and to refuse to foster, in the way New Hampshire commands, an idea they find morally objectionable.").
144.	Hurley v. Irish-Am. Gay, Lesbian and Bisexual Grp. of Boston, 515 U.S. 557, 573 (1995). See also W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943) ("If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein ... We think the action of the local authorities in compelling the flag salute and pledge transcends constitutional limitations on their power and invades the sphere of intellect and spirit which it is the purpose of the First Amendment to our Constitution to reserve from all official control.").
145.	E.g., Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 505-06 (1969) (discussing distinction between pure speech and expressive conduct).
146.	Cressman v. Thompson, 798 F.3d 938, 961 (10th Cir. 2015) (noting similarities and differences in "pure" and "symbolic" speech inquiries). Under United States v. O'Brien, 391 U.S. 367, 376 (1968), "when 'speech' and 'nonspeech' elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms." See also Wooley, 430 U.S. at 716. However, "[t]he government may not regulate use based on hostility—or favoritism—towards the underlying message expressed." R.A.V. v. City of St. Paul, 505 U.S. 377, 386 (1992). See also Texas v. Johnson, 491 U.S. 397, 406 (1989) ("[The government] may not ... proscribe particular conduct because it has expressive elements."). The analysis announced in O'Brien applies only if "'the governmental interest is unrelated to the suppression of free expression.'" Id. at 407 (quoting O'Brien, 391 U.S. at 377). Cf. Runyon v. McCrary, 427 U.S. 160, 176 (1976) ("[I]t may be assumed that parents have a First Amendment right to send their children to educational institutions that promote the belief that racial segregation is desirable, and that the children have an equal right to attend such institutions. But it does not follow that the practice of excluding racial minorities from such institutions is also protected by the same principle.") (emphasis added).
147.	Hurley, 515 U.S. at 559, 561.
148.	Id. at 572-73. See also Boy Scouts of Am. v. Dale, 530 U.S. 640, 648 (2000) ("The forced inclusion of an unwanted person in a group infringes the group's freedom of expressive association if the presence of that person affects in a significant way the group's ability to advocate public or private viewpoints.").
149.	Hurley, 515 U.S. at 577. Compare Rumsfeld v. Forum for Academic & Institutional Rights, 547 U.S. 47, 66 (2006) [hereinafter FAIR] (holding that hosting military recruiters "is not inherently expressive" because, absent explanatory speech, observer would not understand host's message), with Spence v. Washington, 418 U.S. 405, 410-11 (1974) (holding that the placement of a peace sign on flag was expressive because "[a]n intent to convey a particularized message was present, and in the surrounding circumstances the likelihood was great that the message would be understood by those who viewed it").
150.	Church of Lukumi Babalu Aye v. City of Hialeh, 508 U.S. 520, 542 (1993) (citation omitted). See also Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012, 2024 (2017) (holding state policy "imposes a penalty on the free exercise of religion that must be subjected to the 'most rigorous' scrutiny") (quoting Lukumi, 508 U.S. at 546).
151.	Lukumi, 508 U.S. at 533.
152.	Employment Div. v. Smith, 494 U.S. 872, 879 (1990) (quoting United States v. Lee, 455 U.S. 252, 263 n.3 (1982) (Stevens, J., concurring)).
153.	Smith, 494 U.S. at 885.
154.	See Cent. Rabbinical Congress of the U.S. & Canada v. N.Y.C. Dep't of Heath & Mental Hygiene, 763 F.2d 183, 186 n.2 (2d Cir. 2014) (internal quotation marks omitted).
155.	Mullins v. Masterpiece Cakeshop, Inc., 370 P.3d 272, 276 (Colo. App. 2015).
156.	Id.
157.	Colo. Rev. Stat. § 24-34-601(2) (2016) ("It is a discriminatory practice and unlawful for a person, directly or indirectly, to refuse, withhold from, or deny to an individual or a group, because of ... sexual orientation ... the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation.").
158.	Craig v. Masterpiece Cakeshop, Inc., Case No. CR 2013-0008 (Colo. Civil Rights Comm'n May 30, 2014). The Commission also ordered respondents to "take remedial measures ... including but not limited to comprehensive staff training ... and changes to any and all company policies," and instituted reporting requirements. Id.
159.	Mullins, 370 P.3d at 288, 294, 295.
160.	Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Comm'n, 137 S. Ct. 2290, 2290 (2017). The Colorado Supreme Court had declined to hear the case. Masterpiece Cakeshop, Inc. v. Colo. Civil Rights Comm'n, No. 15SC738, 2016 Colo. LEXIS 249, at *1 (Colo. April 25, 2016).
161.	Petition for a Writ of Certiorari, supra note 142, at 14.
162.	Id. at 18.
163.	Brief of the Colo. Civil Rights Comm'n in Opposition at 15-16, Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Comm'n, No. 16-111, 2016 WL 7047744, at *15-16 (U.S. November 29, 2016); Mullins v. Masterpiece Cakeshop, Inc., 370 P.3d 272, 286, 288 (Colo. App. 2015). Mullins and Craig additionally argue that even if Phillips's conduct is expressive, it can be regulated under the test announced in United States v. O'Brien, 391 U.S. 367, 376 (1968), because the state has a substantial "interest in prohibiting discrimination in public accommodations" that "is unrelated to the communicative value" of Phillips's conduct. Brief in Opposition at 16, Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Comm'n, No. 16-111, 2016 WL 7011418, at *16.
164.	See Hurley, 515 U.S. at 577; FAIR, 547 U.S. at 66.
165.	See Mullins, 370 P.3d at 288 ("We recognize that a wedding cake, in some circumstances, may convey a particularized message celebrating same-sex marriage and, in such cases, First Amendment speech protections may be implicated. However, we need not reach this issue. We note, again, that Phillips denied Craig's and Mullins' request without any discussion regarding the wedding cake's design or any possible written inscriptions.").
166.	See FAIR, 547 U.S. at 66; Hurley, 515 U.S. at 574. Writing as amicus curiae, the United States claims that "[i]n circumstances in which two speakers' messages are intertwined, the risk of mistaken attribution is clear." Brief for the United States as Amicus Curiae Supporting Petitioners at 20, Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Comm'n, No. 16-111, 2017 WL 4004530 (U.S. September 7, 2017). The federal government also argues that Phillips's cake, unlike a hotel providing tables and chairs, is a "personalized contribution," made for that specific event, that is inherently communicative. Id. at 21-22. In its amicus brief, the United States argues that a heightened review standard should apply because "application of the law would fundamentally alter 'speech itself.'" Brief for the United States, supra note 166, at 14 (quoting Hurley, 515 U.S. at 573). The federal government further contends that the state's position cannot survive heightened scrutiny because unlike "eradicating racial discrimination," eradicating opposition to same-sex marriage is not a compelling interest. Id. at 32 (quoting Bob Jones University v. United States, 461 U.S. 574, 604 (1983)).
167.	Petition for a Writ of Certiorari, supra note 142, at 28.
168.	Petition for a Writ of Certiorari, supra note 142, at 28
169.	Brief in Opposition, supra note 163, at 20.
170.	Brief in Opposition, supra note 163, at 23.
171.	See Smith, 494 U.S. at 879-80.
172.	See Lukumi, 508 U.S. at 533.
173.	See Smith 494 U.S. at 879 (noting that the Court's "decisions have consistently 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'") (quoting United States v. Lee, 455 U.S. 252, 263 n.3 (1982) (Stevens, J., concurring)). The Court did suggest that a statute's facial neutrality may not be "determinative," if the "object" of the law is to target religion. Lukumi, 508 U.S. at 534-35 ("Apart from the text, the effect of a law in its real operation is strong evidence of its object."). Cf. Stormans, Inc. v. Wiesman, 136 S. Ct. 2433, 2437 n.3 (2016) (Alito, J., dissenting from denial of certiorari) ("It is an open question whether a court considering a free exercise claim should consider evidence of individual lawmakers' personal intentions.... "). But for the reasons discussed, Smith arguably requires the Court to consider such evidence only as it relates to the purpose of the overall statute, rather than this particular application. See Smith, 494 U.S. at 879.
174.	Ward v. Polite, 667 F.3d 727, 740 (6th Cir. 2012) ("At some point, an exception-ridden policy takes on the appearance and reality of a system of individualized exemptions, the antithesis of a neutral and generally applicable policy and just the kind of state action that must run the gauntlet of strict scrutiny.").
175.	Brief in Opposition, supra note 163, at 23. See Bob Jones Univ. v. United States, 461 U.S. 574, 604 (1983) (rejecting Free Exercise challenge because "the Government has a fundamental, overriding interest in eradicating racial discrimination in education" and no less restrictive means were available to achieve that interest). Cf. Hurley, 515 U.S. at 572 ("Provisions like these [public accommodations statutes] are well within the State's usual power to enact when a legislature has reason to believe that a given group is the target of discrimination, and they do not, as a general matter, violate the First or Fourteenth Amendments.").
176.	Bernal v. Fainter, 467 U.S. 216, 249 n.6 (1984). In his brief on the merits, Phillips counters the respondents' strict scrutiny argument by shifting the focus to whether the state has a compelling interest in applying the law in this instance, and by arguing that the state's interests in enforcement in this case do not outweigh his own First Amendment rights. Brief for Petitioners, supra note 142, at 48-61.
177.	135 S. Ct. 2584, 2604-05 (2015).
178.	Id.at 2607 ("The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered.").
179.	42 U.S.C. § 2000e-2(a).
180.	Hively v. Ivy Tech Cmty. College of Ind., 853 F.3d 339, 341 (7th Cir. 2017). But see Simonton v. Runyon, 232 F.3d 33, 36 (2d Cir. 2000) (concluding claims of discrimination based on sexual orientation are "non-cognizable under Title VII").