Dissent among Arizona Supreme Court justices in a gay discrimination case could be why they still have not issued a ruling since oral arguments six months ago, an Arizona State University law professor said.
The state’s highest court does not have any rules requiring it to reach a decision within an allotted time, said ASU law professor Paul Bender, unlike the U.S. Supreme Court, which has to decide cases before the end of the term in June.
Because of this, the Arizona court can theoretically hold off on a decision forever.
It heard the arguments in Brush & Nib v. City of Phoenix on January 22 to decide whether cities can force businesses to do work for those whose views, practices or lifestyles conflict with the owners’ religious beliefs.
The case most immediately affects the validity of a Phoenix ordinance prohibiting discrimination on the basis of sexual orientation. It is being challenged by two women who do not want to prepare custom wedding invitations and other products for same-sex nuptials.
Bender, who is not involved in the case, said that after considering the arguments he did not have any strong feelings on what the court would decide, and that might play into why the court is taking longer than usual to reach a decision.
“This seems like a long time, but on the other hand, it’s a difficult case for them,” Bender said. “My guess is there’s dissent and that (typically) holds things up.”
Bender said when a majority opinion is reached it then gets circulated and a justice might not agree with all or even parts of it. Then, that part gets circulated back around leaving an opportunity for someone to either join the dissent or maybe change their mind entirely.
“That could be what’s going on here,” he said.
The Supreme Court has reached a decision in 14 cases since it heard the Brush & Nib arguments in January, with an average of 86.6 days between argument and when the opinion was released. This includes eight cases that had arguments after Brush & Nib and one that happened the same day on January 22.
The longest length of time in one of those 14 cases was City of Surprise v. ACC/Lake Pleasant, which took 175 days. The shortest time is tied between two cases heard on the same day – both took just 21 days to reach a decision.
As of July 26, Brush & Nib has taken 185 days with no apparent end in sight.
Bender says while six months is not usual, it’s also not unusual.
“It probably happens every couple of years that they hold a case this long,” he said.
The Supreme Court has a bit of a tradition where it typically tries for a unanimous decision, and it usually works out that way, but has changed since the court expanded from five to seven justices in 2016, Bender said.
“Things take longer with seven (justices) because the more people who want to express an opinion means there’s much more chance of dissent,” he said.
Bender also notes what could be taking a while is that this case might be used as a model decision nationally given similar cases that have come before the U.S. Supreme Court without a decision being reached. Most notably, Masterpiece Cakeshop v. Colorado Civil Rights Commission, where the court didn’t rule on the anti-discrimination aspect.
Bender said if this case reaches the end of September with no decision then that will be “an unusually long time.”
“Maybe somebody is still trying to make up their mind,” he said.